Document Type

Article

Abstract

This Article analyzes the use of “regret” in the campaigns to ban GAC and abortion. It identifies two overlapping threads. First, both campaigns against medical care point to protection of patients from future regret as a legitimate state interest justifying restrictions on providing medical care. Second, both rely on concerns about regret to redefine the legal meaning of “informed consent” and make it easier for potential future plaintiffs to prevail in civil suits against providers of medical care. In doing so, both treat the emotion of regret as a distinct injury that may give rise to a range of legal rights and liabilities. The Article reveals a strategic conservative legal movement that has used “regret” as a disciplinary tool to promote “traditional family values,” especially those of natalism and “biological” sex difference.

A few words on terminology. First, regret can be a vague concept subject to a variety of definitions. We define it simply as the backward-looking preference that “things should have been otherwise.” Regret can also be understood by contrast to its inverse, “affirmation.” To affirm a decision or event “is to prefer on balance that [the past] should have the features it actually had.” Second, although conservative media, politicians, and lawmakers often refer to individuals who decide to discontinue GAC as “detransitioners,” this Article refers to them as those who decided to desist gender-affirming care.

The Article proceeds in three main parts. Part I explores the role of regret in state laws that restrict or ban access to GAC for minors, and the judicial treatment of those laws. Part II considers state abortion restrictions and bans, and the judicial treatment of those laws. Part III analyzes how the concept of regret is used by conservative thinktanks, politicians, and lawmakers to promote “traditional family values,” especially involving natalism, traditional gender norms, and “biological” sexual difference. This Part also considers two other choices--the choice to have children and the choice to be childless. It contrasts regret narratives in these two contexts with those in the GAC and abortion contexts to reveal the work that regret is doing for anti-GAC and anti-abortion movements.

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