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

Recent Federal Appellate Court Decisions that Interpret Laws Banning Certain Types of Physician Speech

Martha Swartz
Martha Swartz

Historically, laws that are aimed at regulating the content of speech rather than the time, place or manner in which the speech occurs, are afforded the highest level of protection under the First Amendment. The Florida federal district court found that because the law forbidding physicians from asking patients about their gun ownership tried to regulate the content of physician speech (as opposed merely to regulating the time or place where the speech occurred), the law was subject to the highest First Amendment protection.[8] Because the state could not meet its burden of showing that it had a “compelling interest” in promoting the law and that the means it chose to advance its interest was “the least restrictive” available, the court enjoined the law. However, the Eleventh Circuit that reviewed this decision disagreed. Not deferring to the American Medical Association’s policy encouraging “members to inquire as to the presence of household firearms as part of childproofing the home”[9], the Eleventh Circuit concluded that such an inquiry was “a private matter irrelevant to medical care”, “not part of the practice of good medicine” and therefore “subject to reasonable licensing and regulation.” [10]Thus, Florida is now free to prohibit physicians from inquiring about gun ownership as part of their preventive health discussions with patients.

The Third and Ninth Circuits also upheld state laws that prohibited physicians from speaking with their patients freely. Both New Jersey and California had passed laws forbidding physicians (and other mental health professionals) from engaging in “conversion therapy” with minors. This type of therapy is aimed at transforming a patient’s sexual orientation from homosexual to heterosexual. In each case, the court weighed the importance of protecting minors against the intrusion on health care professional’s rights to speak freely with their patients and each concluded that the interest in protecting minors outweighed the health care professional’s rights. However, the two circuits arrived at their conclusions for very different reasons. The Ninth Circuit arrived at its conclusion by applying a very low level of protection to professional communications with patients, finding that professional speech during treatment was more like conduct than speech protected by the First Amendment; in contrast, the Third Circuit viewed the communications as speech protected by the First Amendment, but it applied only an intermediate level of protection to this type of “professional speech.”

How Do the Various Levels of Protection Differ From One Another?

The various levels of protection lie on a continuum: the low level of protection requires only that the state show that its law is “rationally related” to a “legitimate state interest.” Most laws can be shown to be rationally related to a legitimate state interest, so if a court applies this standard, it is likely to uphold a law. In contrast, the intermediate level of review requires that the state must demonstrate that its law promotes a “substantial state interest,” and that the law “directly advances” that interest. This standard is harder to comply with, so more laws are likely to fail this test. Finally, he highest level of protection requires that the state demonstrates that the law promotes a “compelling interest” and that the law is drafted in the “least restrictive way” necessary to accomplish its goals. Thus, if a court requires a state to demonstrate that a law promotes a compelling state interest that it is drafted in the least restrictive way to accomplish its goal, the state is going to have a very hard time satisfying that test and a court is likely to enjoin the law.

Recent Federal Appellate Court Decisions Interpreting Laws that Force Physicians to Provide Medically Unsupported Information to Patients.

Three different circuit courts of appeal have reviewed laws that require physicians to provide arguably medically unsupported information to patients seeking abortions. The Eighth Circuit determined that South Dakota was free to force physicians to warn a patient that having an abortion terminates her “existing constitutional rights with regards to her relationship with her fetus”, among other “facts” since it determined that the information was “truthful and non-misleading.”[11] (This decision overturned a lower federal district court’s opinion that had held that the statute violated physicians’ First Amendment rights because it required them to “enunciate the State’s viewpoint on an unsettled medical, philosophical, theological, and scientific issue, that is, whether a fetus is a human being.”[12]).

Like the Eighth Circuit, the Fifth Circuit found that the state statute requiring physicians to perform medically unnecessary ultrasounds and to provide state-mandated information to women seeking abortions did not violate physicians’ First Amendment rights since the mandated information was “non-misleading, truthful and relevant”. Both the Eighth and the Fifth Circuits applied the same low level of protection to physicians’ communications with their patients that is used to judge whether commercial advertising can be regulated.[13]

In contrast, the Fourth Circuit Court of Appeals, in reviewing a North Carolina statute that required physicians to perform a medically unnecessary ultrasound on all women seeking abortions, to display the ultrasound image to the patients and to provide them with state-mandated information, whether or not they wanted to hear or see the information, found that the statute did violate physicians’ First Amendment rights. Unlike the Fifth and Eighth Circuits, the Fourth Circuit concluded that a higher, “heightened intermediate” standard of review was necessary because even if the compelled speech was factual, the state was nevertheless imposing these requirements on physicians which amounted to “transforming the physician into the mouthpiece of the state [which] undermines the trust that is necessary for facilitating healthy doctor-patient relationships and, through them, successful treatment outcomes.” [14] Significantly, not only did the court apply this heightened standard to the statute’s requirement that physicians convey certain state-mandated information to their patients, but it applied the same standard to the state’s requirement that the physician display the sonogram image since it treated the conduct of displaying the sonogram like speech because the conduct was conveying a state-mandated message. The court’s conclusion was dictated, in part, by the standard of protection that it applied.

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