What Doctors Can Legally Tell Their Patients

Physician-Patient Communication and the First Amendment[1]

By Martha Swartz

Most physicians believe that they are free to talk—or not talk—with patients about whatever they so choose, consistent with their professional ethics and medical judgment. They may, in fact, believe that the First Amendment protects this right. However, because physicians are considered to be engaged in a commercial activity and subject to state licensing, physician communications with their patients are subject to governmental regulation.

State legislatures have increasingly passed laws that specifically prescribe what physicians may or may not say. Legislatures have both required that physicians provide certain information to patients using state-mandated scripts and prohibited physicians from discussing certain topics with their patients. When challenged on the basis that these laws violate physicians’ First Amendment rights to speak freely to their patients, courts have applied standards of review developed in the context of commercial speech, that is, they have essentially equated physicians’ communications with their patients with commercial advertising, applying a lower standard of legal protection than the protection that is afforded to political speech, which is highly protected because it is considered essential to the preservation of our democratic form of government.

A case emanating from Pennsylvania, Planned Parenthood v. Casey, is often cited as having established this standard for physician communications with their patients. In that case, Planned Parenthood challenged a Pennsylvania statute that required physicians to provide specific information to women seeking abortions about the “probable gestational age of the unborn child”, arguing that the law violated physicians’ First Amendment rights.[2] The U.S. Supreme Court upheld that portion of the law, concluding that physicians’ speech justifiably could be restricted “as part of the practice of medicine, subject to reasonable licensing and regulation by the State.”[3].

In deciding whether a state regulation unduly interferes with an individual’s free speech rights, courts engage in a balancing act, weighing the state interest promoted by the regulation against the individual’s constitutional right. Where a regulation interferes with political speech, courts require that the regulation serves a very important or “compelling” government interest if the regulation is to be upheld (“Compelling Interest Test”), but if a regulation only interferes with commercial speech, the regulation will be upheld as long it reflects a “substantial” governmental interest and the regulation is “rationally related” to that interest (“Rational Basis Test”). Since courts generally apply the less protective “Rational Basis Test” to laws that regulate physicians’ communications with their patients, they usually uphold state regulations that restrict physician-patient communication.

Compelled Speech vs. Prohibited Speech.

Courts disagree about the extent to which states are permitted to mandate the content of physicians’ communications with their patients versus their ability to prohibit physicians from speaking about certain topics to their patients.  However, it appears that courts tend to frown more upon laws that prohibit speech than laws than require physicians to follow a state-mandated script in communications with their patients.

Laws that Ban Physician Speech.

A federal judge in Florida decided that a Florida law that prohibited physicians from asking their patients about gun ownership as part of a preventive care discussion violated physicians’ First Amendment rights. (Wollschlaeger vs. Farmer).[4] The Ninth Circuit Court of Appeals rejected as unconstitutional a federal law that prohibited physicians from talking with their patients about medical marijuana (Conant vs. Walters).[5] On the other hand, the U.S. Supreme Court upheld a federal regulation that prohibited physicians who worked in a federally funded family planning clinic from counseling women about abortion (Rust v. Sullivan).”[6]  Most recently, the Ninth Circuit Court of Appeals rejected arguments that a California state law banning a type of psychotherapy that is aimed at changing an individual’s sexual orientation, violated the psychotherapist’s First Amendment rights (Pickup v. Brown).[7]

The reasoning in these cases varied: the Wollschlaeger court, in a decision that runs counter to most other cases in this area, applied the more protective Compelling Interest Test because the state was trying to regulate the content of physicians’ speech. The Conant court didn’t make clear what standard of review it was using—it just emphasized the need for physicians to be able to talk freely with their patients. The Rust Court didn’t address the First Amendment at all, but based its decision on the government’s prerogative to direct its funding. Finally, the Pickup court concluded that the speech that is used in` therapy is conduct, rather than speech, and therefore not protected by the First Amendment.

In 2012, the Pennsylvania legislature enacted a law that prohibits physicians from revealing information about fracking chemicals that he obtained in the course of treating a patient.[8] A lawsuit challenging this prohibition has been filed by a Pennsylvania nephrologist.[9]

Laws that Mandate Physician Speech.

All fifty states have laws that require physicians to disclose certain information to patients prior to treating them; these laws are known as “informed consent” laws. None of them have been successfully challenged as an unconstitutional infringement of physicians’ free speech rights. In fact, physicians are subject to professional disciplinary action, as well as lawsuits by patients, if they fail to provide the required information to patients. The difference between “informed consent” laws and the laws that mandate the content of specific information to be conveyed to patients is that “informed consent” laws merely impose a general obligation to provide certain types of information, leaving to the physician’s judgment the content of the information to be disclosed.

Abortion is one area in which state laws have tried to force physicians to follow state-mandated scripts in communicating with their patients.  The Eighth and Fifth Circuit Courts of Appeal have each approved laws in South Dakota and Texas, respectively, that require physicians to provide a pregnant woman seeking an abortion with specific information about the fetus; in South Dakota, the law requires the physician to provide the patient with a written statement that the “abortion will terminate the life of a whole, separate, unique, living human being”, “that the pregnant woman has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota:” and “that by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated.”[10] The Texas law requires physicians to order sonograms for pregnant women seeking abortions and to provide information about the “presence of cardiac activity” and “the presence of external members and internal organs in the fetus or embryo”.[11] In both cases, the courts reached their conclusions by applying the less protective “Rational Basis Test”, rather than the more protective “Compelling Interest Test”.

The Pennsylvania state legislature recently passed a law mandating that women with dense breasts receive a state-mandated script in their mammography reports that suggests that they might need additional tests.[12] Several expert groups, including the American College of Radiologists, have expressed concern about the legislation since they believe that the assessment of breast-density is subjective and there is no consensus about whether that factor alone warrants additional screening. The New York state legislature passed a law requiring physicians to provide terminally ill patients with information about palliative care and end-of-life options.[13]Thus far, neither statute has been challenged.

Physician’s Communications with Their Patients Should Be Afforded More Legal Protection than Commercial Speech

Unlike commercial speech which is aimed at making profits for the speaker, a physician’s communication with his patients, the parameters of which are established by the physician’s ethical obligations and fiduciary duty to her patient, is intended to benefit the patient. In fact, in restricting a physician’s ability to communicate with his patient, the First Amendment rights of her patient are also being infringed since the patient is being denied information that the physician wants to convey or is receiving slanted information that the physician would not otherwise provide.

The state has a role in regulating physicians’ communications with their patients to some extent. In imposing a general obligation to provide medically relevant information through informed consent laws, the state fulfills its obligations to protect the safety of its citizens without unduly interfering with the substance of information that physicians convey to their patients. However, recently enacted laws exceed this valid purpose and interfere with physicians’ exercise of their First Amendment Rights.

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The Law Office of Martha Swartz (www.swartzhealthlaw.com) concentrates on the regulatory and business aspects on health care.