Last October, I asked that we pray during the oral arguments in Chiles V Salazar, the Supreme Court case of a therapist threatened by Colorado’s Conversion Therapy ban. The Supreme Court released its 8-1 opinion in favor of Chiles on March 31st.
the Supreme Court case of a therapist threatened by Colorado’s Minor Conversion Therapy Law (MCTL). Similar laws exist in 23 states. The Supreme Court released its 8-1 opinion in favor of Chiles on March 31st. It is one of significance for Catholic medical practice because it specifies that medical professionals enjoy the highest level of First Amendment protection in most all clinical discussions with their patients.
Most MCTLs use very similar language regarding what is banned and what is allowed – Massachusetts language is like Colorado’s. Banned is ”any practice by a health care provider that attempts or purports to impose change of an individual’s sexual orientation or gender identity including, but not limited to, efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex,” (MGL c.112 §275) while permitting any practice that affirms acceptance and expression.
This blatant bias was clear to almost all of the justices. Justice Gorsuch penned the majority opinion, in which he wrote:
The fact that the State’s viewpoint regulation targets only licensed healthcare professionals like Ms. Chiles changes nothing. Colorado and the dissent may believe that the First Amendment should carry “far less salience” for the Nation’s millions of “medical professionals” than for everyone else. They may believe that state-imposed orthodoxies in speech pose few dangers and many benefits in this field (and who knows what others). But their policy is not the First Amendment’s. The Constitution does not protect the right of some to speak freely; it protects the right of all. It safeguards not only popular ideas; it secures, even and especially, the right to voice dissenting views.
He continues, addressing professional speech particularly:
Consistent with these principles, our precedents have expressly rejected the State and dissent’s notion that “professional speech” represents some “separate category of speech” subject to “diminished constitutional protection.” History is littered with examples of official efforts to manipulate and control professional speech—including “the content of doctor-patient discourse”—in ways designed “to increase state power,” “suppress minorities,” and muzzle “unpopular ideas.”. And the “dangers associated with” censorship, we have recognized, are no less acute “in the fields of medicine and public health” than they are anywhere else.
Frequently referenced in this opinion and its dissent is NIFLA v Becerra (2018) in which the Court found that pregnancy resource centers could not be compelled to inform patients of abortion availability. In that case, the Court distinguished between requiring speech for informed consent of a particular intervention versus speech detailing alternative interventions to which the clinician had moral objections. In Chiles, the speech was itself the intervention, provided only to patients who sought it, and did not involve any Aversion Therapy, a once standard treatment that has long been abandoned. Current MCTLs have only been recently enacted, starting in 2012, arising out of LGBTQ activism rather than a rejection of current medical standards.
Justice Jackson was the lone dissenting judge. She draws from case law to establish that the State can legally regulate medical practice and that applying strict scrutiny (the highest level of protection) under the First Amendment depends on context – a point to which Justice Gorsuch gives far more detail. She writes, “In my view, then, it matters for First Amendment purposes that the MCTL restricts treatment-related speech uttered by medical professionals only as part of a larger regulatory scheme aimed at ensuring that providers tender high-quality medical care to patients,” referencing information supplied to the court by organizations in favor of the ban.
However, when Justice Jackson argues why professional speech should be denied strict scrutiny, she looks to NIFLA and Casey v Planned Parenthood (1992). In Casey, abortion doctors claimed that several state requirements were unconstitutional, including providing informed consent for an abortion because it put an undue burden on a woman seeking one. The Court disagreed, writing, “the physician’s First Amendment rights not to speak are implicated only as part of the practice of medicine, which is licensed and regulated by the State.”
The takeaway from NIFLA is that Casey applied a lower level of scrutiny because the law in Casey restricted speech uttered in the course of—and as a part of—providing professional medical care [emphasis added]. By contrast, the notice requirement in NIFLA was not “tied to a procedure at all” and was therefore meaningfully different: That law restricted “speech as speech.” Thus, the key distinction, as the NIFLA Court saw it, was whether the challenged law was a regulation of speech as such or a regulation of “professional conduct that incidentally burden[ed] speech.”
Jackson references Casey – the narrow case of requiring informed consent for a procedure being regulated by the State – and broadly reinterprets it as applying whenever “providing professional medical care” in general, and thus to Ms. Chiles. As Gorsuch writes:
But here, Ms. Chiles seeks to engage only in speech, and as applied to her the law regulates what she may say. Her speech does not become conduct just because the State may call it that. Nor does her speech become conduct just because it can also be described as a “treatment,” a “therapeutic modality,” or anything else. The First Amendment is no word game. And the rights it protects cannot be renamed away or their protections nullified by “mere labels.”
Looking at the texts of these copy-cat MCTLs, one sees that they do not address informed consent, nor do they ban just aversion therapy-type practices (since the medical profession has already abandoned them). Instead, they use the Conversion Therapy context in order to ban expressing a point of view. “As applied here, Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may and may not express,” the opinion notes.
Gorsuch argues that “accepted” medical practices change, sometimes reversing, even condemning what was once acceptable and legally protected. He presents two examples, the first of which received much attention during oral arguments. The American Psychological Association and other professional organizations once widely viewed homosexuality as a disorder; Conversion Therapy for homosexuality had been a standard practice from the 1950s to the 1970s, which many clinicians opposed at the time. If a law had permitted dissuasion of homosexuality and banned its affirmation then, by Jackson’s reasoning, opposing clinicians would not have received strict First Amendment protection. Gorsuch’s second illustration is Buck v Bell, the 1927 Supreme Court decision that allowed the forced sterilization of those “afflicted with an hereditary form of insanity or imbecility”. That case has never been overturned.
The Court’s opinion closes with the following: “Far from a test of professional consensus, the First Amendment rests instead on a simple truth: ‘[T]he people lose’ whenever the government transforms prevailing opinion into enforced conformity.”
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