Ohio Gov. DeWine Is Wrong—Protecting Kids Is the Conservative Thing To Do | Opinion

On the final Friday of 2023, Ohio Governor Mike DeWine vetoed H.B. 68—bipartisan legislation that would have protected vulnerable children against harmful surgical and pharmaceutical procedures aimed at altering their bodies to match their perceived gender identities. That decision has been roundly condemned by many, including Kristen Waggoner, the CEO of my employer Alliance Defending Freedom, who wrote that DeWine's veto "betrays kids and families." The Ohio legislature now has the opportunity to override DeWine's veto.

DeWine, a Republican, defended his veto on ostensibly conservative grounds. He invoked parental rights, arguing that decisions to submit children to sterilizing and permanently disfiguring medical procedures should be made by "the parents who have raised that child" and personally witnessed the child's struggle. He also invoked the principle of limited government, stating that "these tough, tough decisions" were ones that "should not be made by the state of Ohio."

DeWine's rationale, however, not only betrays kids and families but reflects a misunderstanding of parental rights and the role of government.

The Supreme Court has found that the interest of parents in the care, custody, and control of their children "is perhaps the oldest of the fundamental liberty interests recognized" by the Court. As I have argued, this fundamental liberty interest confers on parents—not educators or government bureaucrats—the right to decide upon the treatment of their minor child's gender dysphoria. That argument likewise is supported by vast majorities of voters, 78 percent of whom agree that "a child changing his or her gender identity has major long-term medical and psychological ramifications," and that parents "should know, and have an opportunity to be involved in, such an important aspect of their child's well-being."

Parental rights, however, do not answer the question of whether the medical profession can insist upon offering minors off-label drugs and risky surgeries that can have life-long physical effects, including permanent sterilization. This question was confronted very recently by the U.S. Court of Appeals for the Sixth Circuit in a case called L.W. v. Skrmetti. In that case, the court considered the constitutionality of Tennessee's and Kentucky's laws barring the same types of pharmaceutical and surgical interventions addressed by Ohio's H.B. 68.

The court began its analysis by recognizing that the government has long had the power to regulate medical services. The court observed that a "long tradition of permitting state governments to regulate medical treatments for adults and children" exists. This includes the power to pass laws banning physician-assisted suicide, which the Supreme Court held in Washington v. Glucksberg do not violate the right of patients to access care.

Turning to the Tennessee and Kentucky laws, the court observed that "parents do not have a constitutional right to obtain reasonably banned treatments for their children." Importantly, the court distinguished common-sense regulation of controversial procedures from cases in which treatments are imposed upon children by the state, such as when a Michigan law required health care organizations to collect blood samples from newborns without parental consent—a law the court held violated parental rights. "It is one thing for the State to impose a procedure on someone," the court observed, and "quite another to deem it unsafe and prohibit it."

Which brings us back to DeWine's tortured reasoning for his veto of H.B. 68. Prohibiting the medical profession from performing irreversible and harmful pharmaceutical and surgical procedures on minors is not an overreach. It's a fulfillment of the state's obligation to protect highly vulnerable citizens from dangerous, often coercive, commercial practices. Protecting minors from such harmful procedures does not interfere with parental rights any more than limiting minors' access to codeine to prevent addiction, or to performance-enhancing steroids.

After receiving heavy criticism for his veto, DeWine directed the Ohio Department of Health to issue a rule prohibiting "gender transition surgery" for minors but refused to recant his veto decision. That fig leaf does little to advance public health, however, as studies have shown that the vast majority of children who struggle with symptoms of gender identity disorder will naturally resolve those issues—provided they are not subjected to social or pharmaceutical interventions. And as the emergence of young "detransitioners" like Chloe Cole has shown, often the realization of the damage being done by these alleged "treatments" comes too late, after minors have undergone irreversible surgeries.

Conservatism, rightly understood, does not condemn the judicious and courageous use of government power to protect vulnerable citizens against clear dangers. The current rush to inflict irreversible damage on minors already suffering painful gender confusion calls for just that. DeWine's veto of H.B. 68 may be many things, but it has little to do with conservative values, parental rights, or the proper role of government.

Ryan Bangert is senior vice president of strategic initiatives and special counsel to the president for Alliance Defending Freedom (@ADFLegal).

The views expressed in this article are the writer's own.