Do Physicians Have the Right to Speak Freely with their Patients?

By Martha Swartz

Most physicians probably assume that they have the right to speak freely with their patients, at least within the constraints imposed by professional ethics and medically supported facts. However, that right has eroded in recent years as numerous states have passed laws that either require physicians to enunciate state-mandated, medically unsupported information to their patients, unsupported by medical evidence, or forbid physicians from discussing certain topics. These laws go far beyond the informed consent laws enacted in most states in the 1960s and 1970s, which only required physicians to provide certain categories of information to patients prior to invasive treatment, e.g. the nature of the risks and benefits entailed.

Since 2013, when Physicians News last published an article on this topic, several federal appellate courts have disagreed about the appropriate level of First Amendment protection that should be applied to physicians’ communications with their patients. The level of protection is important because the greater the level of legal protection, the less likely a court will uphold a law that restricts such physician free speech rights. This disagreement among the federal appellate courts means that the United States Supreme Court may soon be in the position of reviewing the issue.

Laws Restricting Physicians’ Ability to Communicate Freely with their Patients

Within the past several years, numerous states have tried to restrict the way physicians talk with their patients. In 2011, the Florida legislature passed a law that prohibits physicians from asking patients about their gun ownership as part of a preventive health questionnaire, and in 2014, Missouri passed a similar statute.[1] In 2012, Pennsylvania passed a law that prevents physicians who treat patients suffering from injuries caused by fracking chemicals from revealing the chemical content of the chemicals.[2] Laws in both California[3] and New Jersey prohibit physicians and other health care professionals from using language intended to change their minor patients’ sexual orientation (known as “conversion therapy”).[4]

On the other hand, a number of states have enacted laws that compel, rather than prohibit, physician speech. Several states enacted statutes, including Texas, South Dakota and North Carolina that force physicians to provide patients with specific state-mandated information prior to performing abortions, some of which is not supported by medical evidence.[5] Some states, including Texas and North Carolina enacted statutes to require that physicians perform medically unnecessary ultrasounds before performing an abortion, along with directing physicians to provide specific information in conjunction with the procedure.[6] At least one state, Arizona, requires physicians who prescribe a two-step-based medical abortion to tell patients that the procedure can be reversed after the first pill is taken, a “fact” that is not supported by medical evidence.[7]