OTHER states’ attorneys general actually fighting FOR North Carolina (WHERE is Josh?)

Remember how some federal judges told state treasurer Dale Folwell AND the State Health Plan they HAD to cover gender-transition procedures?

Folwell has also warned us that the plan — as is — is struggling to pay its bills and may go insolvent by 2026.  Now, we’ve got a bunch of new court-mandated elective surgeries and procedures to further strain the already financially-stressed State Health Plan.

Our attorney general is supposed to be our government’s counsel in lawsuits.  But attorney general Josh Stein apparently only responds to the cries of low-T, Chapel Hill-Carrboro-style weirdos. (*Green hair? Member of a drum circle and rarely bathe?  Josh is your, um, “man.”*)

But, hold on. All is not lost.  Two dozen attorneys general from other states are reaching out to the US Supreme Court to stand up for North Carolina’s State Health Plan [h/t law360.com] :

A group of two dozen Republican attorneys general told the U.S. Supreme Court it should review a Fourth Circuit decision barring West Virginia and North Carolina from excluding coverage of gender-affirming medical care for transgender people, arguing states need the power to control controversial nascent treatments.

The attorneys general, led by Missouri Attorney General Andrew Bailey, said in an amicus brief filed Monday that the Fourth Circuit’s April decision in favor of transgender patients threatens their democratic right to make policy decisions in areas where the science is unclear. In an 8-6 ruling, an en banc appeals panel ruled that healthcare plans covering medically necessary treatments for some diagnoses but blocking coverage for those same treatments for gender dysphoria violated the 14th Amendment’s equal protection clause in the U.S. Constitution, in addition to other federal laws.

But the amici states told the high court that the appeals court’s ruling is based on a conclusion that gender-affirming medical care for transgender patients, such as puberty blockers, hormone treatments and surgeries, is “medically necessary,” when that’s far from true. In Europe, for example, the United Kingdom, Finland, Norway and Sweden have put certain restrictions on these treatments, and stateside, the U.S. Agency for Healthcare Research and Quality concluded in 2021 that there was a lack of evidence-based guidance on treatments for transgender children and adolescents.

“The Fourth Circuit’s contrary conclusion that states have no discretion is not just contrary to law; it threatens the ability of states to make the tough decisions with which they are democratically entrusted,” the group of states led by Missouri wrote. “The Fourth Circuit’s sharply split decision undermines federalism and should be quickly reversed.”

West Virginia Medicaid patients sued in 2020, challenging an exclusion in the state’s low-income health plan for gender-affirming surgery, while participants in a North Carolina state health plan for teachers and state employees sued in 2019, challenging an exclusion for treatment connected to “sex changes or modifications and related care.” On appeal, two panels appeared to diverge in their reading of the issues during separate oral arguments, leading the Fourth Circuit to rehear en banc the combined appeals in September.

In its April decision, the appeals court majority upheld summary judgment in both cases and held that the states’ coverage exclusions were discriminatory based on sex and gender identity on their face, and weren’t substantially related to an important government interest.

But Missouri and the 23 other amici states noted that the United Kingdom recently wrapped up a four-year, 400-page review that concluded the evidence for gender transition treatments is “remarkably weak” and that there’s “no good evidence on the long-term outcomes of interventions” for adolescents.

Additionally, the states said the Fourth Circuit relied on guidance from the World Professional Association for Transgender Health, an advocacy group that admits its gender-affirming care model is unproven. According to the amicus brief, WPATH has also suppressed scientific research that undercuts its preferred conclusions and bowed to political pressure from the Biden administration to remove age minimums for surgery in minors.

Missouri also echoed arguments made by West Virginia and North Carolina in their petitions for certiorari and noted that states have limited resources, meaning they sometimes have to make tough coverage decisions. For example, Missouri Medicaid covers pacemakers, but not those with plutonium batteries based on the risks associated with those pacemakers, nor does the Show-Me State cover vein punctures for blood draws, “routine foot care,” testing for specific antibodies or transportation to a medical facility, according to the brief.

“The ability of states to make these judgment calls is always necessary, but it is especially necessary in the context of gender transition interventions given the emerging international consensus that these interventions lack scientific support,” the amici states wrote.

North Carolina State Treasurer Dale Folwell told Law360 in a statement Thursday that he appreciates the support from nearly half the states in the U.S.

“Our position remains unchanged. State governing bodies are best equipped to evaluate health care coverage that provides the greatest good to the highest number of people,” Folwell said. “They, and not the courts, are the proper place to make such decisions.”[…]