The U.S. Supreme Court ruling this week against Colorado’s ban on licensed mental health providers engaging in gender and sexuality “conversion therapy” could narrow the authority of state medical boards to regulate aspects of health providers’ care that involves speech, according to legal experts. The implications could extend far beyond matters related to LGBTQ+ rights to other forms of talk therapy, telehealth, and physician advice on Covid-19, vaccines, or reproductive care.
Because the therapist who challenged the law, Kaley Chiles, engages in talk therapy — without prescribing medications or having any physical contact with patients — the majority decided that the Colorado law constitutes a restriction on her speech due to her particular viewpoint, or opinion. In an 8-1 decision, the judges sent the case back to a lower court for a higher level of judicial scrutiny, which will likely result in the ban being overturned.
“We’re going to discover the new boundaries set by Chiles. I don’t know if we have them fully mapped out,” said Carmel Shachar, the faculty director of the Health Law and Policy Clinic at Harvard Law School. “I think it does take power away from state medical boards.”
The court made a crucial distinction in describing therapy as “speech” rather than professional conduct, which could partly be intended to rationalize the high court’s decision last year to allow a Tennessee ban on gender-affirming medications 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 almost never allowed under the First Amendment.
“Her speech does not become conduct just because the State may call it that,” Justice Neil Gorsuch wrote in the majority opinion, referring to Chiles. “Nor does her speech become conduct just because it can also be described as a ‘treatment,’ a ‘therapeutic modality,’ or anything else.”
By labeling talk therapy “speech,” and deciding the ban was based on a “viewpoint” rather than a proven risk for harm, the ruling could affect how state medical boards regulate some types of health care, and how powerful standards of care are, experts said.
The full reach of the decision will need to be tested in future legal challenges. Where might those pop up? “Anywhere that there’s a restriction on clinician speech,” Shachar said.
The Colorado law made it clear that clinicians could lose their license if they participated in efforts to change a person’s sexuality or gender. Evidence shows that these efforts are both ineffective and harmful to patients, though Chiles’ lawyers argued that the existing body of research doesn’t focus explicitly on forms of the practice that are speech- or conversation-based.
“I think that this opinion gives quite a shield to medical professionals who are providing services that only utilize talking from state regulation,” Shachar said.
That includes an array of clinicians licensed to practice talk therapy, but could also lead to challenges from doctors who practice in states that restrict them from counseling patients on abortion.
“The biggest question for me is how applicable will Chiles be in different contexts,” Shachar said. If a physician is counseling a patient about a surgical option, but they wouldn’t be the one to perform it, is that speech or conduct? Because the Chiles decision categorizes the law as viewpoint discrimination, that might make it less relevant in such a case. “But it does create an opening to say, ‘Hey, I’m just talking,’” Shachar said.
Some clinicians are already making such challenges, particularly regarding interstate telehealth regulations. Therapy can be done via telehealth, as can consultations that, technically, consist of only a conversation. Two cases in California and New Jersey challenging telehealth regulations are currently going through federal appeals courts. Plaintiffs in both have raised First Amendment concerns that will likely be strengthened by the Chiles decision. The Cato Institute, a libertarian think tank, has expressed support for the California challenge to what it calls the state’s “speech-chilling licensing regime.”
As the sole dissenter on the Chiles case, Justice Ketanji Brown Jackson expressed concern that the decision “opens a dangerous can of worms … to impair States’ ability to regulate the provision of medical care in any respect” and “risks grave harm to Americans’ health and well-being.”
Jackson also took issue with the characterization of the law as viewpoint discrimination, arguing that “a standards-based healthcare scheme cannot function unless its regulators are permitted to choose sides.”
The Supreme Court majority rejected the idea that the Colorado law was comparable to typical medical regulation. “As applied to Ms. Chiles, the State seeks neither to regulate her speech incident to any conduct, nor does it seek to compel disclosure of factual and uncontroversial information,” Gorsuch wrote. “Instead, it seeks to silence a viewpoint she wishes to express.”
The majority opinion and the concurring opinion written by Justice Elena Kagan repeatedly express the importance of a “free marketplace of ideas,” even within medicine. But such a marketplace could potentially protect a physician who wants to spread anti-vaccine information, Shachar said.
Children’s Health Defense, a vaccine-skeptical organization once led by health secretary Robert F. Kennedy Jr., noted in a blog post that the Chiles decision could be helpful in two pending medical free speech lawsuits that the group has filed. One claims that the California medical board is targeting doctors who promote Covid misinformation, threatening them with disciplinary proceedings. Another alleges that a Washington state medical board policy on Covid misinformation is a violation of doctors’ free speech.
“The Supreme Court just held that physician speech is fully protected even when the speech is the treatment itself,” Rick Jaffe, an attorney on both cases, told the CHD blog. The California case in particular, “involves physician speech that isn’t even treatment, just information and recommendations.” He expects a quick win.
For now, it appears the ruling may only apply to laws or government regulation, leaving room for other enforcement pathways like medical malpractice challenges or discipline from professional societies or employers. Still, that leaves patients with the responsibility of seeking recourse after harm has already been done.
Clinicians and LGBTQ+ advocates objected to the idea that therapy is not a type of professional conduct, and emphasized that it can have real effects, either positive or harmful, on patients. “Our job as licensed providers is not to digest whole the goals of our clients,” Julia Sadusky, a Catholic therapist, said in a media briefing Wednesday. “We’re meant to bring expertise, education and collaborate with our clients on treatment goals.”
The American Psychological Association also expressed concern at the far-reaching consequences the decision could have on the regulation of therapy.
“It raises a lot of alarm bells because, if talk therapy is speech, it limits the ability to regulate what these professionals say to their patients,” said Rachael Soule, the APA’s director of business regulations and independent practice. “And how broad can that go?”
“The court majority … has, in effect, opened the door to protecting any harmful or toxic form of persuasion or therapy on these grounds,” Victor Reus, a psychiatrist and distinguished professor emeritus at the University of California, San Francisco, wrote in an email. “There was widespread alarm at AI programs encouraging adolescent thoughts of suicide, but it now appears that this might be acceptable if a human therapist acted in the same manner.”
