The U.S. Supreme Court’s decision this week against Colorado’s ban on licensed mental health providers who engage in gender and sexuality “conversion therapy” could narrow the power of state medical boards to regulate aspects of care for speech-related providers, legal experts say. The impact could extend far beyond issues related to LGBTQ+ rights to other forms of talk therapy, telemedicine, and medical advice on COVID-19, vaccines, and reproductive health.
Because the therapist who challenged the law, Kaylee Childs, engages in talk therapy without prescribing medication or having any physical contact with patients, the majority held that the Colorado law was a restriction on her speech because of her particular viewpoints and opinions. In the 8-1 ruling, the justices sent the case back to a lower court for a higher level of judicial review, which would likely result in the ban being overturned.
“We’re going to discover new boundaries that the Chileans have set, and I don’t know if we’ll ever fully understand them,” said Carmel Shachar, dean of the Health Law and Policy Clinic at Harvard Law School. “I think this would take power away from the state medical boards.”
The court made a crucial distinction by describing therapy as “speech” rather than professional conduct, which may have been intended to rationalize last year’s high court ruling that upheld Tennessee’s ban on gender-affirming drugs and surgeries, Shachar said. But the decision also characterizes the law as viewpoint discrimination (specifically, here the desire to change someone’s LGBTQ+ identity), which is rarely recognized under the First Amendment.
Justice Neil Gorsuch referenced Chiles in his majority opinion, writing that “her speech does not become an act just because the state might call it so.” “Also, just because what she says can be described as ‘therapy’ or ‘therapy’ does not make it an act.”
Supreme Court rules against Colorado ban on ‘conversion therapy’ for LGBTQ children
Labeling talk therapy as “speech” and determining that the ban was based on “point of view” rather than a proven risk of harm could impact how state medical boards regulate some types of medical care and how strong standards of care are, experts said.
The full scope of this decision will need to be tested in future legal challenges. Where do they appear? “Wherever there are limits to what clinicians can say,” Shachar says.
Colorado law makes clear that clinicians can lose their licenses if they participate in efforts to change a person’s sexuality or gender. Although evidence shows these efforts are ineffective and harmful to patients, Chile’s lawyers argued that the existing body of research does not explicitly focus on forms of practice based on voice or conversation.
“I think this opinion provides quite a bit of shield to medical professionals who are providing services solely based on state regulatory narratives,” Shachar said.
That includes many clinicians certified to practice talk therapy, which could lead to challenges from doctors practicing in states that restrict counseling patients about abortion.
“The biggest question for me is how applicable Chile is to different situations,” Shachar said. If a doctor is counseling a patient about surgical options, but is not the one actually performing the surgery, is that behavior? The Chilean judgment classifies the law as viewpoint discrimination, so the law may be less relevant in such cases. “But it gives you an opening to say, ‘Hey, I’m just talking,'” Shachar says.
Some clinicians are already making such challenges, especially with regard to interstate telemedicine regulations. Treatments can be delivered through telemedicine, as well as consultations that technically consist only of conversation. Two lawsuits in California and New Jersey challenging telehealth regulations are currently pending in federal appeals courts. Plaintiffs in both countries have raised First Amendment concerns, and the Chile decision could further exacerbate them. The Cato Institute, a libertarian think tank, has announced support for California’s challenge to what it calls its “speech-chilling licensing system.”
Conservative justices question medical authority as Supreme Court considers conversion therapy
Justice Ketanji Brown Jackson, the sole dissenter in the Chile case, expressed concern that the decision “opens a dangerous can of worms that undermines the state’s ability to regulate the delivery of health care in all its aspects” and “risks serious harm to the health and well-being of Americans.”
Jackson also took issue with the law’s characterization as viewpoint discrimination, arguing that “a standards-based health care system cannot function unless regulators are allowed to choose sides.”
A majority of the Supreme Court rejected the idea that the Colorado law was comparable to typical medical regulation. “As applied to Ms. Chiles, the state is not attempting to regulate her speech in any way, nor is it attempting to compel the disclosure of factual and indisputable information,” Gorsuch wrote. “Rather, they are trying to silence the perspective she wants to express.”
The majority opinion and concurring opinion, written by Justice Elena Kagan, reiterate the importance of the “free market of ideas” in medicine as well. But such a market could protect doctors who want to spread anti-vaccine information, Shachar said.
Children’s Health Defense, a vaccine-skeptic group once led by Health Secretary Robert F. Kennedy Jr., said in a blog post that Chile’s decision could help with two pending medical free speech lawsuits filed by the group. Some claim the California Medical Board is targeting doctors who promote coronavirus misinformation and threatening them with disciplinary proceedings. Others argue that the Washington State Medical Board’s policy on coronavirus misinformation is a violation of doctors’ free speech rights.
“The Supreme Court just ruled that what a doctor says is fully protected even when it comes to treatment itself,” Rick Jaffe, an attorney on both cases, told CHD Blog. The California case, in particular, “involves statements made by doctors that are merely information and recommendations, not treatment.” He is hoping for a quick victory.
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For now, the ruling appears to only be applicable to statutes or government regulations, leaving room for other enforcement routes, such as malpractice challenges or discipline from professional associations or employers. Still, after harm has already been done, the onus remains on the patient to seek redress.
Clinicians and LGBTQ+ advocates pushed back against the idea that therapy is not a type of professional conduct, emphasizing that therapy can have a real impact, positive or negative, on patients. “Our job as licensed health care providers is not to understand all of our clients’ goals,” Catholic therapist Julia Sadusky said at a media briefing Wednesday. “We aim to provide expertise and education and work with clients toward their treatment goals.”
The American Psychological Association also expressed concern about the decision’s potentially far-reaching effects on treatment regulation.
“This raises a lot of alarms because if talk therapy is audio, it limits the ability of these professionals to regulate what they say to patients,” said Rachel Soule, APA’s director of business regulation and independent practice. “And how far will it spread?”
“The court’s majority effectively opened the door to protecting any harmful persuasion or therapy on these grounds,” Victor Royce, a psychiatrist and distinguished professor emeritus at the University of California, San Francisco, wrote in an email. “While there has been widespread alarm over AI programs that promote suicidal thoughts in adolescents, it appears that similar behavior may be tolerated when performed by human therapists.”
