Submitted by Jesse Hill Court summary in Maw vs. Yost On behalf of the plaintiff. She is the Judge Ben C. Green Professor of Law and director of the Reproductive Rights Law Initiative at Case Western Reserve University.

The Ohio Supreme Court is considering a case that touches on two hot-button issues: parental rights and access to health care for transgender children.

The court heard oral arguments in the case late last month. Maw vs. Yost. Two transgender youth and their parents claim that Ohio’s ban on gender-affirming care for minors violates the state constitution. In early 2024, the Ohio General Assembly overrode the veto of Ohio’s Republican governor and passed House Bill 68, which prohibits health care providers from prescribing puberty blockers and hormone therapy to transgender children. “If I were to sign House Bill 68, if House Bill 68 were to become law, we would be saying that the state of Ohio knows better what is medically best for a child than the two people who love that child most, their parents,” Gov. Mike DeWine said of his veto. He added that the law also goes against “the medical judgment of the treating team of physicians and medical professionals.”

During oral arguments, the Ohio Supreme Court justices seemed interested in the law’s impact on parental rights, asking just seconds after the state attorney’s argument, “Is the state’s position that parents have no rights in this matter?”

Indeed, the lawsuit’s claims echo DeWine’s concerns. Plaintiffs argue that the ban violates parents’ fundamental right to make medical decisions for their children, which is enshrined in the state’s equivalent of the Due Process Clause. They also argue that the ban violates the right to buy and sell medical care under the Ohio Constitution’s Medical Freedom Amendment. The amendment was added to the Ohio Constitution in 2011 and was promoted by some advocates as a repudiation of the federal Affordable Care Act’s individual mandate for health insurance. But its language is much broader than that, and the amendment specifically declares that “no federal, state, or local law or regulation shall prohibit the purchase or sale of medical care or health insurance.”

A trial court ruled in August 2024 that the medical ban on transgender children is constitutional and enforceable. The Intermediate Court of Appeals reversed, ruling in March 2025 that the law violated both the Medical Freedom Amendment and a parent’s right to substantive due process. The state appealed.

During oral arguments, state attorneys told the high court that the question was whether parents had a fundamental right to “gender reassignment treatment” for their children. She argued that according to the “history and tradition” test outlined in a 1997 U.S. Supreme Court case: Washington vs Glucksbergthere was no such fundamental right. In fact, the state would completely reject the doctrine of substantive due process, which allows courts to protect rights they deem fundamental, even if those rights are not explicitly mentioned in the text of the Constitution. The state also argued that whatever rights parents have, they do not include the right to override decisions of Congress regarding this particular form of health care choice, do not have a long enough history, and therefore cannot constitute a fundamental right. The state therefore argued that since no fundamental rights were at stake, the ban should be subject only to rational basis review, the lowest constitutional level of review.

By contrast, the plaintiffs argued that the state defined fundamental rights at too specific a level that the law should be subject to strict scrutiny (the strictest form of judicial review) and would fail under the more general right of parents to make decisions about their children’s health care.

Regarding the plaintiffs’ medical freedom claims, the state’s lawyers argued that the 2011 reforms were only intended to protect medical care. transaction It was free from government regulation and did not undermine the government’s long-standing traditional authority to regulate medical procedures. Lawyers for the state also expressed concern that the text of the amendment, if taken literally, could be interpreted broadly enough to override virtually all medical regulations, including those targeting controlled substances like opioids.

In response, plaintiffs’ attorneys argued that their interpretation of the Medical Freedom Amendment does not invalidate all opioid regulations. Opioids have legitimate medical uses and, unlike gender-affirming care for minors, are not subject to a blanket ban in Ohio, the lawyers pointed out. Thus, a ban on gender-affirming care for minors completely prohibits access to accepted medical care, whereas regulation of opioids does not. Judge Pat DeWine (son of Gov. Mike DeWine) pressed the plaintiffs on whether Congress or the courts have the power to define health care. Plaintiffs’ lawyers argued that defining medical care is a judicial function, no different from courts defining what constitutes speech under the First Amendment or investigation under the Fourth Amendment.

The state also argued that another provision of the Medical Freedom Amendment, which maintains the validity of “laws intended to deter fraud or punish wrongdoing in the health care industry,” gave Congress the power to define gender-affirming care for minors as “fraud.” However, as the plaintiffs pointed out, this provision targeted illegal activities such as fraud and medical malpractice. Additionally, the plaintiffs said that if the bill were interpreted as delegating power to the Legislature to make all forms of medical care off-limits simply by calling it “fraudulent,” the constitutional amendment itself would be invalidated.

Moewhich determines whether minors in Ohio receive gender-affirming care, ties into national discussions and trends beyond gender-affirming care. First, throughout their arguments, state attorneys openly flouted science and expert consensus. For example, she claimed that the World Association of Transgender Health Professionals, which developed guidelines for gender-affirming care of minors, was “waging an ideological war” and painted medical professionals in the field as politically driven rather than scientifically. In contrast, the plaintiffs accepted the lower court’s findings based on the evidence. Similar debates over the politicization of science are currently unfolding in many areas, including abortion rights and vaccines.

Second, the case raises questions about the scope of medical freedom under state constitutions, including provisions like Ohio’s. Following passage of the Affordable Care Act, five other states (Alabama, Arizona, Florida, Oklahoma, and Wyoming) enacted similar amendments. The Wyoming Supreme Court recently ruled that the state’s Medical Freedom Amendment protects the right to abortion. In this decision, the Wyoming court clearly ruled that abortion is medical care, directly contradicting the argument that courts should leave it up to Congress to determine what does and does not qualify as “medical care.” The debate about the meaning of health care and the respective powers of legislatures and courts to define and regulate it is likely to continue.

Finally, Moe It highlights the increasingly important role of state courts and state constitutions in efforts to expand transgender rights. Last year, the U.S. Supreme Court upheld a Tennessee law banning gender-affirming care for minors. USA vs. Scumettiargues that the ban does not violate the Equal Protection Clause of the U.S. Constitution because it does not discriminate on the basis of sex or gender. Rather, the court said it made the distinction solely based on age and “medical use.” However, this did not affect the Ohio case. Moe Plaintiffs relied on state constitutions rather than the United States Constitution. Moreover, even though Ohio courts tended to link the meaning of the state constitution to federal interpretation, the U.S. Supreme Court did not consider that point. I shrieked. The question is whether this ban violates parents’ fundamental right to control their children’s medical care, and there is no federal law equivalent to the Medical Freedom Amendment. Regardless of the Ohio Supreme Court’s final decision, it will not be the last state high court to consider whether the state constitution provides broader protections for transgender people than the U.S. Constitution.

Recommended quote: Jesse Hill Ohio Supreme Court hears arguments in transgender lawsuitSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (March 31, 2026), https://statecourtreport.org/our-work/analysis-opinion/ohio-supreme-court-hears-arguments-trans-rights-case

For decades, Pennsylvania courts ignored the state’s constitution’s unique history and provisions regarding “cruel punishment” and instead followed the federal government’s adherence to the Eighth Amendment. That all changed last week when the Pennsylvania Supreme Court ruled that the state constitution prohibits mandatory sentences of life without parole for individuals convicted of felony murder. This landmark judgment is notable for many reasons, including how international law is incorporated into the arguments and the justices’ opinions.

A felony murder conviction does not require the government to prove the defendant had intent to kill. Instead, the intent required for felony murder is constructively inferred from the defendant’s intent to commit the underlying felony. Illinois enacted the nation’s first felony murder law in 1827, defining murder to include unintentional killing that occurs during the commission of a felony. Similar systems were in place in 19 states by the end of the 19th century. However, recognizing the strictness of this rule, many of these states later reduced its scope. For example, some states have lowered required sentences or expanded the possibility of parole for people convicted of felony murder. According to the Pennsylvania Supreme Court, by 2026, only five states — Iowa, Louisiana, Mississippi, North Carolina and Pennsylvania — have imposed mandatory life sentences without parole for felony murder without exception.

Derek Lee was convicted of second-degree murder in Pennsylvania in 2016 after his accomplice shot and killed a robbery victim. In Pennsylvania, second-degree murder includes any murder “committed while the defendant was engaged in the commission or accomplice of a felony.” Under Pennsylvania law, courts have no choice but to sentence defendants convicted of second-degree murder to life in prison without parole.

Mr. Lee challenged the ruling on both the federal and state constitutions. He argued that because he did not kill or intend to kill anyone, his responsibility for the death was diminished, and that the mandatory sentence of life in prison without the possibility of parole was “unduly harsh in relation to legitimate penal objectives and departs from contemporary national and international standards.”

The Pennsylvania High Court reversed Lee’s judgment; Commonwealth v. Leefirst looked at federal law. Reviewing the U.S. Supreme Court’s Eighth Amendment precedent, the court concluded that cases in which a defendant was found to have “clearly diminished liability” did not apply to Mr. Lee’s case because they only concerned capital punishment or juvenile defendants. Without additional guidance from the U.S. Supreme Court regarding life sentences and adult defendants, Pennsylvania courts have been reluctant to impose state mandatory sentences as a matter of federal law.

Turning to whether the state constitution’s prohibition on “cruel punishment” provided independent support for Lee’s challenge, the court looked to the 1991 decision. Commonwealth v. Edmundswhich sets out a step-by-step framework for an independent analysis of states’ constitutional rights. According to edmundsthis process requires consideration of four factors. The first is the text of the relevant Pennsylvania Constitution provision. Second, the history of this provision, including Pennsylvania case law. Third, relevant case law from other states. and fourth, policy considerations, including issues of state and local concern and their applicability in contemporary Pennsylvania jurisprudence.

The court noted that with respect to the express provisions of the Pennsylvania Constitution, the relevant state provision prohibits only “cruel punishment,” while the federal counterpart prohibits “cruel and unusual” punishment. The court relied on a recent U.S. Supreme Court decision. Grants Pass vs. Johnsonexplained the independent significance of the term “abnormality” in the Eighth Amendment. The court found that the omission of “anomaly” from the Pennsylvania Constitution indicated that it afforded defendants broader protections than the federal Constitution.

The history of state regulations also supported defendants’ objections. Pennsylvania’s “cruel punishment” regulations were adopted in 1790, one year before the ratification of the Eighth Amendment. The court reviewed the historical record and concluded that Pennsylvania’s Founding Fathers adopted a different view of punishment than other early Americans because of the commonwealth’s Quaker origins. According to the court, they “rejected the harshness of British criminal law, de-emphasizing retaliation as a justification that underpinned the Eighth Amendment, and turned instead to emerging Enlightenment theories as the basis for criminal punishment in Pennsylvania.”

The court’s historical analysis also provided a basis for distinguishing past state court decisions that interpreted the Pennsylvania Constitution in line with the Eighth Amendment. According to the court, these lawsuits were based on an incomplete understanding of and access to the historical record. Second, a broader study of other states’ approaches showed mixed results, with some states operating in lockstep and others adopting independent analysis. However, the courts in Pennsylvania that have conducted the most stringent reviews, such as those in Minnesota, New Jersey, and Washington, have concluded that state constitutions provide greater protections to citizens than the Eighth Amendment.

final match edmunds The court held that policy considerations did not preclude a broad interpretation of the Pennsylvania Constitution. The court opined that the policy direction should be clarified to limit interference with other branches of the court, explaining that policy considerations were too general to consider invoking a mandatory life without parole rule. The court deferred to Congress the details of how the court’s decisions would be enforced, demonstrating some respect for Congress in the area of ​​policy-making.

Several justices concurred separately, but one, Justice Kevin Brobson, dissented based in part on disagreements over the court’s discussion of next steps rather than the basic structure of Pennsylvania’s constitution. But Justice David Vecht’s concurrence is notable because it addresses the question of whether international and comparative law should play a role in Pennsylvania’s state constitutional case.

International human rights law was factored into Lee’s case. His brief cited a request by the United Nations Human Rights Committee for the United States to suspend mandatory life sentences without parole in 2023, arguing that these penalties depart from the United States’ treaty obligations. Additionally, among the many court briefs filed in this case were briefs on behalf of the United Nations Special Rapporteur on Modern Forms of Racial Discrimination and the United Nations Expert Mechanism for Promoting Racial Justice and Equality in Law Enforcement. They argued that Pennsylvania’s policy is a global outlier, that it violates human rights law because it constitutes cruel, inhuman and degrading treatment, and because it applies differently to black and brown Pennsylvanians. The majority opinion noted what these preparatory papers said regarding international law, but did not suggest that they were binding.

However, Mr. Vecht went out of his way to declare that “a case before the Pennsylvania Supreme Court is not a case before the International Court of Justice.” He further stated that “foreign laws, customs, and customs have no place in the analysis of Pennsylvania’s Constitution.” While he acknowledged that the majority’s involvement with these international materials was modest, he cautioned advocates to avoid submitting such materials, saying “prospective litigants should be careful.”

Ironically, Mr. Vecht’s agreement actually advocates for stronger judicial education in international law. Although his views equated international law with foreign law, in reality international law is a separate body of jurisprudence. For example, it argued that there is a danger of cherry-picking when examining foreign law, but it failed to explain how that problem arises when citing international human rights law. He argued that Pennsylvania’s laws are designed to be different from those in other countries, but could not explain how they could be reconciled with the Union Supremacy Clause’s recognition that treaties are part of the supreme law of the land. Even if it is not legally binding due to federal reservations, it is certainly a compelling source of information.

In any case, despite Vecht’s position, some state courts and judges have found both international and comparative law useful when interpreting state constitutions independently. for example, Commonwealth v. Mattisthe Massachusetts Supreme Judicial Court examined Canadian and British practices in determining that life without parole for juveniles violated the Massachusetts Constitution. Additionally, the majority of the U.S. Supreme Court looks to international law to determine whether a particular practice is cruel or unusual. Lee such a decision Roper vs Simmons.

Indeed, former U.S. Supreme Court Justice Stephen Breyer said judges can learn “what to do and what not to do” by looking to international actors. However, relying on international or foreign sources has caused controversy at the federal level. For example, his colleague Justice Antonin Scalia argued strongly that international and comparative sources should not be cited in domestic decisions.

Mr. Vecht appears to want to nullify even minimal citations of international law at the national level. But even Scalia moved away from Wecht’s extreme positions. Lee He said it could be helpful to consider comparative materials rather than relying on them. People who file lawsuits in the future should be careful.

Martha F. Davis is University Distinguished Professor at Northeastern University School of Law.

Recommended quote: Martha Davis Pennsylvania’s ‘cruel punishment’ decision agrees with international human rights lawSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (March 30, 2026), https://statecourtreport.org/our-work/analysis-opinion/pennsylvania-cruel-punishments-decision-nods-toward-international-human