What is the Disagreement Among Federal Appellate Courts?
The appellate courts’ varying conclusions in these cases reflect the different standards of First Amendment protection that they applied to the cases before them The district courts in Florida, Texas and South Dakota applied the highest form of legal protection afforded in First Amendment cases, known as the “strict scrutiny” test. That test requires a state to show that a state law protects a “compelling” state interest and its implementation is the “least restrictive” way to accomplish its goal. However, no appellate court has agreed with that approach.
Instead, the level of protection applied by the various appellate courts ranges from little protection to intermediate protection. The Ninth and Eleventh Circuits, which decided one of the conversion therapy cases and one of the gun cases, respectively, concluded that a physician’s communications with her patients should not be considered speech at all. Rather, since it takes place during treatment, it should be considered conduct which only incidentally involves speech; as such, it deserves only a low level of protection under the First Amendment.
On the other hand, the Third and Fourth Circuits, in deciding one of the conversion therapy cases and one of the abortion-ultrasound cases, respectively, concluded that a physician’s communication with her patients during treatment deserves protection under the First Amendment, but only at the intermediate level. They decided that a state only needed to show that its law “directly advanced” a “substantial state interest”. Interestingly, when the Third and Fourth Circuits applied that test to the facts before them, they came to two different conclusions. When the Third Circuit applied that test to the conversion therapy case before it, it concluded that the state’s substantial interest in protecting minor patients justified the law banning conversion therapy. On the other hand, when the Fourth Circuit applied a similar standard to the state’s mandated abortion-related information case, it concluded that the state’s interest in protecting fetal life, as well as the pregnant woman’s psychological health did not justify making the physician “the mouthpiece” of the state by forcing her to provided medically unsupported information to her patients.
The disagreement among these federal appellate courts centers on whether a physician’s communication with her patients during treatment should receive the low level of protection provided to conduct or a higher level of protection that is afforded to the content of speech. Even those courts that view physicians’ communication with their patients as constitutionally protected speech disagree as to the level of constitutional protection that such communication deserves. Should such speech receive minimal protection under the First Amendment, maximum protection or protection that lies somewhere in between?
What level of constitutional protection does a physician’s communication with her patients deserve?
Traditionally, outside of the professional speech context, regulations aimed at restricting the content of speech, rather than the time, place or manner in which the speech occurs, is afforded the highest level of protection, i.e., strict scrutiny. However, none of the federal appellate courts applied that standard.
The argument that should be made is one that actually was made by an earlier Ninth Circuit Court of Appeals in a case involving a federal policy that would have revoked the DEA licenses of physicians who recommended the use of marijuana by their patients. The court concluded: “An integral component of the practice of medicine is the communication between a doctor and a patient. Physicians must be able to speak frankly and openly to patients. That need has been recognized by the courts through the application of the common law doctor-patient privilege…The doctor-patient privilege reflects ‘the imperative need for confidence and trust’ inherent in the doctor-patient relationship…Being a member of a regulated profession does not, as the government suggests, result in a surrender of First Amendment rights. To the contrary, professional speech may be entitled to “the strongest protection our Constitution has to offer”.
Because of the disagreement among the Circuit Courts of appeal, the degree of First Amendment protection afforded to physicians’ communications with their patients may soon be addressed by the U.S. Supreme Court. The question will be whether physician communications with their patients during treatment should be treated like relatively unprotected conduct or as protected speech. If it is treated as protected 1`speech, the Court would have to decide where on the continuum of protection this type of speech deserves: the low level of protection afforded to commercial speech, the intermediate level of protection suggested by the Third and Fourth Circuits or the highest level of protection advocated by the U.S. District Courts in Florida and Texas.
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 FLA STAT. ANN. Sec. 790.338 (West 2011); see also Mo. Rev.Stat.. 571.012 (2014).
 58 Pa. C. S. Sec. 3222.1(b)(11) (2012). Although this law has been challenged by a physician on First Amendment grounds, no court decision has yet been issued.
 Cal. Bus and Prof Code Sec. 865.2 (2012)
 N.J. STAT Sec. 45:1-54,55 (2013)
 S.D. CODIFIED LAQS Sec. 34-23A(2011); Tex. Health & Safety Code Ann. Sec. 1171.012(a)(4)(c)(2012)
 N.C. Gen. Stat. Sec 90-21.85(a)(a11)
 Ariz. Rev. Stat. 36-2153(A)(A)(2)(h).
 Wollschlaeger v. Farmer, 814 F. Supp. 2d 1367 (S.D. FLA 2011); Texas Medical Providers v. Lakey, 806 F. Supp. 2d 570 W.D. Tex. 2011)
 Id, Dissent at 66
 Id at 42-43
 S.D.C.L Section 34-23A-10.1.; Planned Parenthood Minnesota v. Rounds, 633 F. 3d 662, 734-35 (8th Cir. 2011).
 Planned Parenthood Minnesota v. Rounds, 375 F. Supp. 2d 881, 887 (S.D. SD 2005).
 Planned Parenthood Minnesota, 633 F. 3d 662 (8th Cir: 2011); Tex. Med. Provider v. Lakey, 667 F. 3d 570 (2012
 Stuart v. Camnitz, No. 14-1150, slip op at 31 (4th Cir: 2014).
 Stuart v. Camnitz at 253-54.
 Conant v. Walters, 309 F.3d 629, 636-37. (9th Cir.: 2002)