Abstract
Government regulations of medicine sometimes treat patients differently based on their race or sex. Does heightened scrutiny apply to such regulations—as is usual when law treats someone differently based on a protected characteristic? Or is there a medical exception to equal protection?
Recently, in United States v. Skrmetti, the Supreme Court upheld a law that restricted access to medical treatments for transgender minors. Though its holding did not rely on medical exceptionalism, its discussion reinvigorated interest in a “medical exception” to equal protection: that medical decisions are exempt from the searching review applied when governmental decisions consider protected characteristics.
For decades, courts have rejected occasional calls for medical exceptionalism, asserting that heightened scrutiny applies whenever government acts based on protected class membership. Skrmetti feints toward, though does not create, a loophole that would shield sex- or race-based clinical guidelines—even potential race-based vaccination schedules— from meaningful constitutional review. This Article traces the history of medical and other exceptions in equal protection jurisprudence and argues that a medical exception is unsound. Arguments that courts should leave high-stakes medical debates to experts, agencies, or legislatures misunderstand heightened scrutiny’s purpose, which is precisely to “smoke out” illegitimate uses of protected classifications. The judiciary’s role is not to uncritically defer to classifications in medicine, but to scrutinize them.
This Article concludes by exploring avenues to resist a doctrinal shift toward medical exceptions. Such avenues include cabining or reversing Skrmetti, invoking federal antidiscrimination statutes that lack any medical exception, and turning to state constitutions that offer more robust equal protection guarantees. Rather than allowing medicine to become a sphere of diminished antidiscrimination protections, this Article reaffirms that safeguards against discrimination should extend to all contexts, including those involving life and health.
Recommended Citation
Govind Persad, Against a Medical Exception to Equal Protection, 83 Wash. & Lee L. Rev. 335 (2026).Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol83/iss1/8
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