SCOTUS conversion therapy decision “opens a dangerous can of worms”

In Chiles v. Salazar, the Supreme Court of the United States (SCOTUS) recently held that a Colorado law banning conversion therapy, a discredited and harmful treatment for same-sex orientation and gender dysphoria, was a “presumptively unconstitutional” infringement on a mental health counselor’s First Amendment free speech rights. The case was sent back to the lower courts to decide whether Colorado can prove its law “is narrowly tailored to serve compelling state interests”, a standard that is, in the Supreme Court’s own estimation, extremely difficult to meet.

In its ruling, the Court essentially bifurcated the standard of care for treatment based on whether the care is spoken, as in talk therapy, or conduct, as in surgery. If the treatment is spoken, any government regulation banning substandard care must meet a First Amendment test so strict (hence the name, “strict scrutiny”) that “it is ‘rare that a regulation . . . will ever be permissible’”. If the treatment is administered via conduct, the First Amendment is not implicated. Thus, the state can still rely on the consensus of medical experts as to the effectiveness and safety of the treatment in regulating healthcare practices.

And what of healthcare that arguably combines speech and conduct, like a discussion with one’s doctor concerning whether or not to have surgery? The Court gave no clear answer.

As Justice Jackson, the lone dissenter, put it, the decision

opens a dangerous can of worms.

I agree.

Today, we’ll look at the facts of the case and the majority’s opinion, written by Justice Gorsuch, joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett.  Justice Kagan, joined by Justice Sotomayor, filed a concurring opinion, which we’ll touch on briefly. 

Then we’ll see how Justice Jackson effectively exposes the real-world consequences of the majority’s decision and offers a more sensible constitutional framework for evaluating healthcare practitioner speech.  

Along the way, we’ll encounter some familiar characters who have a vested interest in establishing a constitutional right to promote pseudoscience.

[The mental health counselor challenging the conversion therapy ban specifically advertised herself as being a Christian faith-based counselor, bringing to her defense, in “friend of the court” briefs, a number of religious organizations seeking to protect that counseling approach. Because the First Amendment’s religious freedom protections were not at issue in the case, that aspect will not be further discussed.]

Conversion therapy law

In 2019, Colorado (joining 25 other states) passed a law prohibiting licensed mental health counselors from providing “conversion therapy” to minors, forbidding (quoting the Court’s decision):

‘any practice or treatment . . . that attempts to change an individual’s sexual orientation or gender identity’ . . . as well as any ‘effor[t] to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.’

However (again quoting the Court),

the law explicitly allows counselors to engage in ‘practices’ that provide ‘[a]cceptance, support, and understanding for the facilitation of an individual’s . . . exploration and development.’

As noted in Justice Jackson’s dissent, the Colorado legislature crafted this law “after crediting witness testimony and the professional consensus about conversion therapy—namely, that it is harmful, and that the preferred treatment for minors . . . is affirming care”.

Kaley Chiles, a Colorado-licensed mental health counselor, challenged the law. She claimed it violated her First Amendment right to freedom of speech and sought an injunction against the state’s enforcement of the ban.  

She lost in the district (trial) court and the Tenth Circuit Court of Appeals, both courts finding that, because the law regulated professional conduct, and only incidentally regulated speech, the appropriate First Amendment test was whether Colorado had a “rational basis” for its ban. Because the state legislature had determined that conversion therapy for minors was harmful, the rational basis test was satisfied and the injunction denied.

“Viewpoint discrimination”

The Supreme Court reversed the decision, finding that Colorado had engaged in “viewpoint discrimination” by banning talk therapy that facilitated repression of same-sex orientation or gender identity, while at the same time allowing talk therapy that supported such orientation or identity.  In doing so, the Court applied a straight-up First Amendment speech analysis, treating Chiles as if she were a random lay speaker expressing her thoughts on, say, a hot-button political issue, not a state-licensed health care practitioner providing treatment.

In doing so, the Court did not dispute the conclusions of experts on which the Colorado legislature based the law: that conversion therapy was harmful to minors, “associated with increased depression, anxiety, suicidal thoughts, and suicide attempts.” Nor did it take issue with the state’s ban on the use of harmful physical conversion therapy techniques.

Thus, per the Court, a state is free to decide, based on the evidence, that a therapy is harmful to minors.  But it can ban only physical manifestations of the harmful therapy. If the harmful therapy is delivered in words, the state will face a virtually impenetrable First Amendment barrier, and practitioners will be free to impose that harmful therapy on minors.

Disturbingly, the opinion was downright dismissive of the idea that the state’s authority to protect the public’s health, safety, and welfare through regulation of healthcare practitioners cut the state any First Amendment slack. Justice Gorsuch called any such attempt, when directed to spoken therapies, “state-imposed orthodoxies” and derided what he, and the majority, saw as a move to “censor almost any speech they consider ‘substandard care’”.  The opinion decried what were seen as attempts to “silence”

any professional speech that deviates from ‘current beliefs about the safety and efficacy of various medical treatments’

The quacks are surely thrilled with that one.

And:

A prevailing standard of care may reflect what most practitioners believe today, but it cannot mark the outer boundary of what they may say tomorrow.

Right. Science constantly evolves, so there’s no sense in making any rules against substandard care because, who knows? I’m surprised the opinion didn’t add that quack shibboleth “science doesn’t know everything”.

The Court steadfastly refused to analogize spoken health care treatments to other situations where limitations on harmful speech pass constitutional muster, such as defamation, fraud, and “fighting words”.  It also refused to see talk therapy as analogous to the regulation of commercial speech, which can constitutionally be limited to “factual” information.  

Nor did it agree with the lower courts’ decisions that Colorado’s regulation of speech was only “incidental to” state regulation of conduct, which the Court has recognized in previous cases as requiring a less-demanding level of First Amendment scrutiny.  According to the majority opinion, those precedents don’t apply to the facts here because those cases focused on

two entirely different questions: whether the law in question restricts speech only because it is integrally related to unlawful conduct—or whether the law restricts expressive conduct only for reasons unrelated to its content. 

So, healthcare that includes both speech and conduct (which I assume is a good portion of all medical care) could get by the First Amendment if it meets one of these tests. Good luck with figuring that out. Only time, and perhaps a lot of expensive litigation, will tell us how the courts might try to untangle this Gordian knot. Or, as one health law professor put it,

If I tell you to eat steak and that cholesterol is fake, is that pure speech . . . ?

Concurrence

Justice Kagan, joined by Justice Sotomayor, wrote a concurring opinion. Unfortunately, it also ignored the expert consensus that conversion therapy is both ineffective and harmful, treating it as but one side of a “debate” and endorsing a “both sides” approach to legislation.

Once again, because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward.

A law that was “viewpoint neutral” might be constitutional, the concurrence said, because such a law “raises no real concern that the government is censoring disfavored ideas”.

One constitutional scholar aptly summed up the majority opinion, which

continues a pattern of inconsistent decisions concerning the ability of the government to regulate speech by professionals. . . . If the court follows its approach in Chiles v. Salazar, it will make it more difficult to regulate professionals and to hold them liable to protect their patients and clients. [emphasis added] But there also is a strong sense that, at least for some of the justices, the case is less about a principle, but, like other professional speech cases, much more about the court’s feelings about this law. 

Of course, the Court’s decision cuts both ways. Legislation imposing what some would consider inappropriate ideology on the medical profession—such as requiring doctors to recommend quackery for pain or preventing pediatricians from inquiring about guns in the home—can also fail under a “strict scrutiny” test.

Can of worms

As regular SBM readers are undoubtedly aware, I am deeply concerned about the deleterious effect of ignoring science in government regulation of health care practices and the imposition of ideology in place of evidence. Usually, this comes in the form of legislation that incorporates pseudoscience into the law. Now, even when states attempt to impose a science-based standard, at least as far as spoken treatments are concerned, their efforts could be subject to a First Amendment challenge.

In my opinion, the majority’s pure “free speech” test is neither workable nor is it constitutionally required. Justice Jackson agrees, and explained why in her 35-page dissent, which she read from the bench, indicating her strong disagreement with the majority.  In Justice Jackson’s view, the majority failed to credit the context—the licensing and regulation of health care practitioners—in which Colorado’s ban on conversion therapy operates:  

[It] restricts treatment-related speech uttered by medical professionals only as a part of a larger regulatory scheme aimed at ensuring that providers tender high-quality medical care to patients.

In such cases, she argues, the state is not restricting a practitioner’s speech “as speech”, that is, trying to suppress ideas or expressive content. Rather, it is regulating medical treatment that just happens to be in spoken form. A speech v. conduct distinction is “irrational” in this context:

[F]or purposes of the State’s regulation of harmful professional conduct, treatments administered through words versus treatments administered through acts are not meaningfully different. [emphasis in original]

She freely concedes that, in establishing a standard of care, one “viewpoint” is chosen over others, and finds the majority’s concern about this “puzzling”:

Within the confines of the professional-patient relationship, treatment-related ’truths’ are a given—they are set by licensing and malpractice standards, . . . Taking a position as to how . . . providers should handle a medical issue is the very essence of standard-setting . . . [A] standards-based healthcare scheme cannot function unless its regulators are permitted to choose sides.

Perhaps agreeing with the constitutional scholar’s observation about the personal ideologies of her colleagues, she remarks that

No one would bat an eye if a state required its doctors to discourage, but not encourage, smoking tobacco.

Restricting spoken conversion therapy as a function of setting healthcare standards does not, Justice Jackson notes, restrict practitioners from expressing their support for conversion therapy in other contexts, such as speaking in its favor at conferences or writing journal articles supporting it, activities she believes are protected by the First Amendment.

In summary, she warns that

the Court could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers.

Sadly, Justice Jackson, we’re already there. As I said, this decision will only worsen the existing epidemic of pseudoscientific healthcare practices.

Friends of pseudoscience

Chiles v. Salazar is already being cited by the anti-vaccine organization Children’s Health Defense in First Amendment-based suits against the California and Washington state medical boards over actions targeting doctors who spread COVID misinformation. Its attorney expects a “quick win”.

Speaking of COVID misinformation, a “friend of the court” brief supporting Chiles’s challenge to the conversion therapy ban was filed by America’s Frontline Doctors and Simone Gold, M.D., J.D., who represented the organization before the Court. As you may recall, this group, with Dr. Gold participating, held a rally in D.C. in 2020, where they claimed that hydroxychloroquine, zinc, and Zithromax were “cures” for COVID. Dr. Gold has also said that the COVID vaccine is actually an “experimental biological agent deceptively named a vaccine.” Her brief reiterates these themes, claiming that she and her group were “targeted” by the government for promoting the benefits of ivermectin and hydroxychloroquine for COVID even though they proved to be “completely correct”.  (No, they’re not.)

Another friend of the court brief supporting Chiles was filed by that friend of pseudoscience, the Association of American Physicians and Surgeons (AAPS), which says it has “strong interests in defending and restoring freedom of speech in the medical profession.” No doubt, as it leaves AAPS members free to promote false information, like claiming links between vaccines and both autism and SIDS, and between abortion and breast cancer.

If I’m being optimistic, on remand to the Court of Appeals, which will almost certainly send the case back to the trial court, I’m not convinced that Colorado couldn’t successfully defend its conversion therapy ban as “narrowly tailored to serve compelling state interests”, given the overwhelming professional consensus (summarized by Justice Jackson in her dissent) that, in addition to the harms mentioned,

the medical community has determined that efforts to change a patient’s sexual orientation or gender identity will necessarily be ineffective. The American Psychological Association . . . has found ‘no empirical evidence that providing any type of therapy in childhood can alter adult same-sex orientation.’ . . . And ‘[n]o research published in the peer-reviewed literature that demonstrates the efficacy of conversion therapy efforts with gender minority youth, nor any benefits of such interventions to children and their families.’

I am hard pressed to imagine, then, why a state wouldn’t have a “compelling interest” in banning conversion therapy, although I admit that the “narrowly tailored” requirement might make some tinkering with the language of the ban necessary. We’ll see what happens.