E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
What
qualifies as state regulation of physician “conduct” as opposed to physician “speech”?
In Wollschlaeger v.
Governor of Florida,
760 F.3d 1195 (11th Cir. 2014), the Eleventh Circuit determined that a Florida
statute prohibiting physicians from inquiring about firearm ownership (among
other things) posed no First Amendment concerns because the statute just
regulated physician “conduct” that had only an incidental effect on physician speech.
According to the Eleventh Circuit,
Florida could define “good medical practice” as not including questions about
firearm ownership.
Imagine
if Florida had instead required
physicians to inform patients that firearm ownership poses little risk to their
families’ safety and health as long as the firearms are properly secured? Under
the majority decision in Wollschlaeger, the state would just be “defining the
practice of good medicine” as including giving patients information about
firearm ownership, and the First Amendment would be inapplicable to this
regulation of physicians’ “conduct.” As the Eleventh Circuit held, “[t]o define
the standards of good medical practice and provide for administrative
enforcement of those standards is well within the State’s long-established
authority to regulate the professions.” But many physicians would undoubtedly
disagree with the compelled statement about firearm ownership, and would view
it as the state’s attempt to interject its ideological position into the
patient-physician dialogue.
Wollschlaeger
demonstrates the dangers of the speech versus conduct distinction as applied to
the regulation of medical professionals: if states are given free reign to
define what qualifies as the practice of “good medicine,” the First Amendment
will provide little protection against the imposition of the state’s ideological,
biased, and medically dubious opinions upon physicians, and by extension, their
patients. Consider state ‘informed consent laws’ in the abortion context: when
a state requires physicians to give patients certain ‘information’ prior to a
medical procedure, the state is regulating what qualifies as “good medicine” as
part of the “conduct” of performing that medical procedure. Under this logic,
requiring a physician to tell her abortion patient that the abortion will
terminate the life of a whole, separate, unique, living human being, and that a
known risk of abortion is an increased risk of suicide and suicide ideation is
just regulation of physician “conduct” that has an incidental effect on speech.
As is a state law requiring physicians to display and describe the results of
an ultrasound examination to the abortion patient, even if she does not want to
see or hear the results. In fact, there would be few limits (except for
rational basis review) on what a state could require physicians to say before
any given medical procedure: the state’s general power to regulate medical
professionals would be extended into an unfettered power to control physician
speech.
Speech in the context
of a patient-physician relationship will often be intertwined with the
physicians’ “conduct.” Certainly there are some types of state statutes that
regulate pure “conduct” that necessarily involves speech—a statute prohibiting
a physician from prescribing a certain drug, for example, also prohibits him
from stating to a patient that he is going to prescribe that drug. Such a
statute regulates pure conduct, not speech, and does not raise First Amendment
concerns. A more complicated example is the California statute prohibiting
licensed therapists from engaging in “sexual orientation change efforts” with
minors, which was upheld by the Ninth Circuit as a mere regulation of licensed
therapists’ “conduct” by banning a certain type of “treatment” effectuated
through speech. Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014).
But if “conduct” is extended to mean whatever occurs during a physician
appointment that is part of “the practice of medicine,” states could control
any aspect of physician speech. Placing heavy reliance on the speech versus
conduct distinction in the context of regulation of the speech of medical
professionals is unworkable. While the First Amendment may not apply with equal
force to all aspects of physician speech, the “conduct” distinction dodges the
free-speech issues raised by these laws, and would give states too much leeway
to regulate medicine based on ideological motivations.
Jennifer Keighley is an associate at Emery Celli Brinckerhoff & Abady, LLP, in New York City, and formerly a Resident Fellow at Yale's Information Society Project. You can reach her by e-mail at jennifer.keighley at gmail.com Posted
8:30 AM
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