Do therapists have First Amendment protections during counseling sessions with their patients? And are these protections for freedom of expression so substantial that they bar the government from overseeing counseling to ensure patient well-being or adherence to professional standards?
This is the pivotal issue in Chiles v. Salazar, slated for Supreme Court hearing on October 7. Although the proposition that unqualified or even harmful therapists might be entirely exempt from oversight seems radical, there’s a considerable likelihood that this Court might adopt such an uncompromising stance.
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This stems from the fact that the Chiles case is also intertwined with one of the most fiercely contested cultural conflicts in American politics: the precedence of conservative Christians’ entitlements over those of LGBTQ Americans. The Republican majority on this Court regularly grants significant wins to the religious right when facing this contention.
Chiles addresses “conversion therapy,” where therapists aim to alter a patient’s sexual orientation or gender identity. A federal appeals court noted that “every leading medical, psychiatric, psychological, and mental health organization opposes conversion therapy.” The American Psychological Association, for example, asserts that it “poses substantial harm risks” and is ineffective at changing a patient’s sexual orientation or gender identity.
Roughly half of the states in the U.S. prohibit “conversion therapy” for individuals under 18, including Colorado, whose legislation is being contested in Chiles. That law forbids licensed therapists from engaging in “any practice or treatment … that aims to or claims to change a person’s sexual orientation or gender identity.” It does, however, provide an exception for counselors “engaged in the practice of religious ministry.”
The plaintiff in Chiles is a therapist represented by Alliance Defending Freedom (ADF), a conservative Christian legal organization that often litigates to restrict LGBTQ rights. Interestingly, ADF’s main argument in Chiles is rather straightforward. The First Amendment safeguards freedom of speech. Colorado’s legislation restricts what therapists can tell their clients. Therefore, ADF contends, the law violates the Constitution.
Historically, however, states have been allowed to regulate professional advice given by licensed individuals to their patients or clients. A lawyer advising a client that “robbing a bank is legal” could face a malpractice suit or disbarment. A doctor suggesting a patient treat a Covid-19 infection by injecting household bleach could be charged with murder if the patient follows that advice.
Certainly, the First Amendment should offer some protection to therapists. For example, a state couldn’t compel licensed therapists to urge their patients to vote for the current governor in an upcoming election. But the amendment hasn’t typically been understood to prevent states from penalizing professionals who give advice that deviates significantly from the professional standard of care.
Nevertheless, when the Christian right seeks a ruling from this Supreme Court, the Republican justices rarely seem to contemplate whether a ruling in their favor might be detrimental to key institutions. As recently as last term, these justices rendered a broad ruling mandating that public schools must notify parents before their child receives any lesson to which the parent might object on religious grounds. Justice Sonia Sotomayor noted in her dissent that this decision is likely to incite “chaos” and “impose impossible administrative burdens” on educators, who cannot possibly foresee which parents might object to which materials or lessons.
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In the past, parents have filed suit against schools due to objections to instruction touching on subjects ranging from divorce, interfaith couples, “immodest dress,” evolution, pacifism, magic, accomplishments of women outside the home, and “false views of death.”
Defining the appropriate boundary separating professionals’ statements that should receive full First Amendment protection from those that states can regulate to protect clients is a challenging task. Even highly skilled judges would likely struggle with the demarcation of this boundary.
However, Chiles will be reviewed by six justices with a record of undermining vital institutions to advance partisan and ideological objectives. This presents a real risk that they will define the boundary in a manner that is completely illogical.
The law has traditionally expected licensed professionals to uphold the standard of care set by members of their own field
Generally, the First Amendment prohibits viewpoint-based discrimination by the state. The government cannot, for instance, arrest anti-abortion protestors who deface a sidewalk, while permitting pro-abortion protesters doing the same to go without consequence. It cannot admit Republicans, but not Democrats, into a public discussion. And it typically cannot revoke someone’s license to practice therapy because it disagrees with their political positions.
In its filing to the justices, ADF seeks to portray Colorado’s law as a manifestation of viewpoint-based discrimination. They argue that the law allows their therapist client “to speak if she helps them embrace a transgender identity,” but claims it prevents her from expressing the opposite perspective to her clients.
Colorado contends that ADF is misinterpreting the law. They claim that it only forbids therapy intended to “change” someone’s sexual orientation or gender identity. It does not mandate that therapists endorse someone’s identity, nor does it bar them from denigrating transgender individuals. It simply prohibits attempts to convert a trans person into something else.
Two of the Supreme Court’s most significant precedents on professional speech arose from cases concerning abortion. Consequently, they are tainted by political considerations.
But, accepting ADF’s depiction of the law, and presuming that it does favor certain perspectives over others, a problem with ADF’s argument is that a level of viewpoint discrimination is intrinsic to professional regulation. A doctor asserting that antibiotics are an effective treatment against bacterial infections, for example, won’t face professional penalties. However, a doctor advising against the use of antibiotics in treating such an infection risks a malpractice suit or other professional sanctions.
Colorado’s brief highlights numerous state laws and court rulings that regulate professional speech, including Alabama legislation barring doctors from making “any untruthful or deceptive or improbable statements concerning … the effects or results of his or her proposed treatment”; an Arkansas law prohibiting physicians from “representing to a patient that a manifestly incurable condition of sickness, disease, or injury can be permanently cured”; and an Oklahoma Supreme Court ruling compelling doctors to inform patients of the risks and benefits of a certain treatment — even when the proposed treatment is to abstain from intervention.
Colorado also proposes a framework to govern when states may regulate speech between licensed professionals and their clients. The state contends that malpractice statutes and related professional regulations have historically been permitted to “require professionals to comply with their discipline’s standard of care” as dictated by the “evidence-based consensus of the professional community.” This holds true whether a professional is performing surgery or advising a client.
Thus, according to Colorado’s proposed framework, the crucial question in Chiles is whether a therapist provided “substandard treatment” as defined by the consensus among mental health professionals. This might trigger challenging First Amendment cases should a state attempt to prohibit a practice contested within a profession. However, Chiles is not such a case due to the overwhelming consensus among professional organizations that conversion therapy is both dangerous and ineffective.
The Supreme Court’s precedents regarding professional speech are inconsistent and noticeably partisan
Unfortunately, two of the Supreme Court’s most significant precedents regarding professional speech emerged in abortion-related cases, rendering them tainted by politics.
The first such case is Planned Parenthood v. Casey (1992). While the case is mostly recognized for its (now-overruled) conclusion that the Constitution safeguards the right to an abortion, the ruling also constrained the First Amendment rights of abortion providers — and that aspect of the Casey decision remains law.
Ordinarily, the First Amendment prohibits the government from compelling speech, but Casey upheld a Pennsylvania law compelling abortion providers to share certain details with their patients. They were, for instance, required to inform patients of state-printed materials intended to promote adoption and discourage patients from undergoing abortion.
However, in National Institute of Family and Life Advocates (NIFLA) v. Becerra (2018), the Republican justices struck down a California law that mirrored the Pennsylvania law upheld in Casey. The California law required many “crisis pregnancy centers” — anti-abortion clinics offering limited healthcare services while attempting to discourage pregnant individuals from choosing abortion — to inform their patients of state programs that help make abortion more accessible.
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It is difficult to devise a logical explanation for the coexistence of these two decisions. Justice Stephen Breyer noted in his NIFLA dissent, “if a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?”
Unsurprisingly, ADF relies heavily on NIFLA in the Chiles case, citing a line in NIFLA that “States may regulate professional conduct, even though that conduct incidentally involves speech.” As ADF sees it, the Pennsylvania law in Casey was constitutional because it regulated “the performance of a ‘medical procedure,’” requiring doctors to provide patients with specific information to obtain their “informed consent” to that procedure. Talk therapy, however, is not a medical procedure, but simply speech, and cannot be regulated under the First Amendment.
However, if this argument holds, it implies that professional misconduct and malpractice of any kind may not be penalized. A doctor advising a patient to take poison, or a lawyer advising their client to commit a crime, does not engage in conduct beyond speech. Indeed, if the state cannot regulate the mere communication between a therapist and a patient, there can be no legal ramifications for a therapist encouraging a suicidal patient to end their life, or one bullying a patient into self-harm.
Realistically, it is improbable that this Supreme Court, with its 6-3 Republican supermajority, will uphold Colorado’s law. Just as the five Republicans who decided NIFLA applied a rule more favorable to anti-abortion clinics than the Court had applied to abortion providers in Casey, the Court’s current majority is likely to arrive at a ruling in Chiles that is consistent with their personal political convictions.
However, if they are not careful, they may inadvertently undermine long-standing regulations governing medical, legal, mental health, and various other professionals. Colorado argues in its brief that states have long penalized professionals who deviate significantly from the standard of care in their respective fields. It is challenging to differentiate between a lawyer providing inadequate advice to a client and a therapist delivering treatment that starkly contradicts the standard of care established by every professional organization of mental healthcare providers.
Source: vox.com
