A Case for Federal Racketeering Enforcement Against Utah for Anti-trans Hate Crimes?
The practice of medicine without a license is a crime… or worse.
The following is an argument. It’s an attempt to craft a legal rationale. I'm trying to provide some ammunition for legal scholars and advocates for trans kids. The right wing machine has done a phenomenal job of creating a worse world for vulnerable kids, and a worse world for the doctors who care for them. What follows is right out of the conservative legal theory playbook. It's complicated, but it's intended to change the minds of people who are capable of creating this change in the world for the better:
Hi there. I have a terminal degree, granting me a medical doctorate…
I’ve even got the negative reviews to prove it:
Yes, I have been a pioneer in neuromodulation since 2017. Thanks for playing, haters. It can be scary to be so ahead of one’s time… so I want everyone to pay attention to the following—it is about to be…🔥🔥🔥
A medical doctorate is not enough to practice medicine, legally. I also have to have a medical license.
Just last week, I wrote about the level of training to get that license. It is complicated, but here’s this really helpful guide:
It was a lot of work. It’s called the practice of medicine for a reason. It's dangerous to do if you're not trained. You could hurt somebody. By the way, I looked it up, it’s actually a crime to practice medicine without one of those medical licenses. Take a look!
No, you can’t. Thanks, search algorithm. What are the elements of the offense?
Even if you did not physically perform any professional services, even if you just fraudulently paid for another person to obtain any of the trappings that allow them to fraudulently practice… That sounds bad. Surely these sorts of things don’t really happened… but if they did, what would be the penalties?
Class E felony sounds pretty bad. But not it’s like these cases are really brought by anybody or anything, right?… Oh, wait…
Okay, so these cases are definitely brought by the Attorney General, at least here in NYC.
What does it look like in other states? How about, I don’t know, Utah?
Gosh, it does look like there are a lot of things that the state of Utah defines as unlawful practice.
But surely, state legislatures wouldn’t be in violation of their own medical practice laws if they created restrictions on the ability of physicians to do their job, right? Oh, wait, let’s zoom in there:
I’m not a lawyer, so all I can do is read here. But it says that if you “enter into a contract that limits a licensee’s ability to advise the licensee’s patient’s fully about treatment options or other issues that affect the health care of the licensee’s patients,” that’s a violation. And isn’t the relationship a doctor has with the state of Utah’s Department of Education contractual? Oh, and I’m sure that all lawmakers are all also licensed doctors when they chose to helpfully consult on what is allowable in medical care?
There’s a problem. Oh my, is there a problem. The problem is that the legislature of the state of Utah just passed a law that violates its own practice of medicine restrictions—and in the process, violates federal laws.
I happen to know this because I’m one of the people who helped create the guidance from our national professional organization around the care of gender nonconforming youth for other child psychiatrists. We care for those children. We do the evaluations for treatment. These are, of course, in keeping with professional guidelines. The Utah legislation demands the review of those. In order to simplify the process, I am just going to link to those WPATH guidelines right here. And, as a public service to the legislature in the state of Utah, or anywhere else thinking about this sort of violation of the practice of medicine regulations in your state, those were updated in 2022. We don’t need you to review them. Doctors already did that. You know, the people with medical licenses, experts. I looked at the governor who signed the law and the people who introduced the law:
None of them are physicians. Zero, zip, none.
Oh my. Well, thank God this is just a criminal matter, and there aren’t robust civil penalties and those with plausible standing available?
Oh, wait a minute… it seems the penalties are substantial:
Before anybody sues you for damages, you’re already liable for… let me check:
Assess a fine of up to $10,000 per single violation or up to $2,000 per day of ongoing violation, whichever is greater, in accordance with a fine schedule established by rule; or
Order to cease and desist from the behavior that constitutes a violation of the provisions described in Subsection (4)(a).
Now, it’s worth noting that there’s probably money that’s moved around in the process, and there’s likely to be adverse outcomes for patients that will be a dereliction of duty (the duty to have had a medical license before making this sort of decision or regulation on the practice of doctors) resulting in direct damages (to the patient, consider the psychological damages around suicide, attempts, etc.) which is the definition of medical malpractice.
But here’s where it gets really interesting… What if this is actually a federal crime? What if this were pursued as racketeering? You know, a criminal conspiracy?
The power of RICO lies in its conspiracy provision, based on an enterprise rationale, that allows tying together apparently unrelated crimes with a common objective into a prosecutable pattern of racketeering. In addition, RICO provides for severe penalties and permits a defendant to be convicted and separately punished for both the underlying crimes that constitute the pattern of racketeering activity and for a substantive violation of RICO. Finally, injunctive relief provisions allow for the prohibition of further involvement with the… organization of the convicted racketeering associates.
For the GOP to be a criminal conspiracy, of course, there would have to be documentation of a group of individuals working together in order to commit a limited set of crimes—it’s only some federal crimes that count under RICO.
Oh, it looks like hate crimes count!
That would be pretty bad… perhaps we better be clear on the federal definition of a hate crimes. At the federal level, this is the definition:
“willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with ... any person because of his race, color, religion or national origin" or because of the victim's attempt to engage in one of six types of federally protected activities, such as attending school, patronizing a public place/facility, applying for employment, acting as a juror in a state court or voting.
In 1994, again at the federal level, the above law was amended to include the following additional language:
The Violent Crime Control and Law Enforcement Act, enacted in 28 U.S.C. § 994 note Sec. 280003, requires the United States Sentencing Commission to increase the penalties for hate crimes committed on the basis of the actual or perceived race, color, religion, national origin, ethnicity, or gender of any person. In 1995, the Sentencing Commission implemented these guidelines, which only apply to federal crimes.
You’ll notice actual or perceived gender counts for federal hate crimes. Hate Crimes fall under RICO. And a conspiracy to enable the fraudulent practice of medicine that results in a dereliction of duty leading to what will be direct damages… Are we there yet?
Don’t worry, Barack Obama made sure it counts by signing the following into law:
On October 28, 2009, President Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, attached to the National Defense Authorization Act for Fiscal Year 2010, which expanded existing United States federal hate crime law to apply to crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability, and dropped the prerequisite that the victim be engaging in a federally protected activity.
Here’s where this gets fun. If something qualifies under federal RICO laws, it also allows for civil enforcement under RICO. Which, for the people bringing the civil claims, entitles them to treble damages! And that makes attorneys’ time on contingency…
To be clear, this isn’t fun for anyone involved, but it’s a novel theory for civil rights lawyers. The kinds of lawyers representing kids who get hurt by reckless lawmakers conspiring to commit fraudulent medical practice by fiat. I don’t know that it would be enjoyable, but it would be career defining.
For those paying attention, this is just straight out of the conservative legal scholar playbook. They come up with some legal theory, they spin up some think tanks about it, they write articles about it, they hold conferences about it, and suddenly everyone can have a gun everywhere. This is the kind of thing Clarence Thomas comes up with in the tub. I had Hadley P. Arkes as a professor. I learned from the best.
Medical practice is protected for very specific reasons. We have extensive training, we have licenses that certify that, we have ethical standards we have to follow in addition to legal standards. We have the highest level of protection, outside of lawyers, of any profession. And we earn that level of protection for activities that would otherwise be understood as criminal—surgery is cutting someone with a knife; in any other context that’s assault.
The Legal Case Against Utah Lawmakers
Families of Utah, with children who require gender affirming care and doctors, who want the ability to have their practice regulated by the existing law—meaning that we follow clinical standards as a guide to practice; you have a legal case.
I am asserting that the crime committed by the governor and legislators introducing the bill in question is practicing medicine without a license. I am also asserting that, should there be medical negligence (a.k.a. a doctor prevented from practicing medicine, according to clinical standards, by non-physician interference which leads to the direct damages to a patient) there could be consequences.
My argument is that the legal recourse can and should be a civil lawsuit for the criminal conspiracy to enable the practice of medicine without a license, resulting in medical negligence, which is a dereliction of duty.
If this resulted in direct damages, I think it’s strongly arguable that there was a criminal conspiracy. Fundraising at the federal level in order to create the well-documented wave of public pressure and political contributions is in furtherance of a criminal conspiracy. The criminal conspiracy is designed to harm children by fraudulently practice medicine by legislation. And that means all of your damages get tripled in federal court, because it’s a hate crime to do so, on the basis of perceived gender. Federal RICO applied to medical malpractice lawsuits against fraudulent fake doctors in statehouses.
No, that hasn’t been filed before. But they haven’t tried to pull this kind of nonsense in the current legal and regulatory environment either. So, I don’t see why somebody shouldn’t try to go after them for three times the money, if a child is harmed.
And Now, I Will Directly Address the Lawmakers in the State of Utah, and Anywhere Else That Wants to Pull This Nonsense:
Get out of my practice. Get back in the business of following the laws of the state you swore to uphold, and the nation whose laws you swore to uphold.
I have a duty to uphold the law. So do you.
I have an additional duty, beyond the law—which is to uphold the ethical standards of my profession. This is a warning to you:
If this kind of discrimination on the part of legislators is found to be legal—then it actually also upholds my right to refuse you care.
Because either it’s medical malpractice to not follow the standard of care because of bigotry and bias, or it’s not. The courts to get to decide. But the second they let those legislators off the hook? That very same decision would support my right to never give any of you any of the treatment that I am able to provide as a doctor, and those standards will hold for any of my colleagues. And we can live without legislators, but you would suffer and die without doctors taking care of you and your children.
Utah legislators—you get to scare people, you get to harm children, you get to pass laws that make people die needlessly. But when you’re in my house, the house of medicine, pray the law bides me to act in your best interest, free of the bias that I now justly harbor against you. Right now, it does. If a legal case against these laws is upheld, I am no longer under any legal obligation to save your life, or that of your family. I want you all to consider what it might be like to have a physician decide to provide no succor to your children, in the darkest night of the soul, because of you?
You may think you want a world where the laws of fickle jurists override the ethical obligations of physicians, but I guarantee you—the amount of suffering humans are capable of experiencing is more than you’re familiar with in your day job, and inevitably more than anyone can stand.
Sure, I’m a doctor, and I should stay out of legal matters? Maybe, but legislators, stay out of the house of medicine—you have not earned that right.
—O. Scott Muir, M.D.
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To do that, I not only have to have completed high school, college, medical school, and additional internship years and residency training, completed and passed three epic US Medical Licensing exams, completed the rest of residency training and another exam or two or three for board certification, and completed continuing medical education credits ongoingly.
Professor Arkes: you’re a gifted man, and a great teacher, but I have natural rights too. And one of those natural rights is to express myself freely. And I’m going to do so. I think you’re wrong about abortion. I respect your conviction, but I think you misused your manifest gifts as an educator and a scholar to make the world a worse place. I'm going use what you taught me to push back on an agenda I now recognize as deeply mendacious and insincere. I've stood on the threshold of life and death, and it's not what you said. Starting with first principles matters, and respect for the fundamental dignity of humans is that first principle. And I can see that you abandoned it with the causes you chose to champion and the company you chose to keep.