an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
speech in professional or public health contexts include both funding
conditions and restrictions on what must or must not be said. Some restrictions entail straightforward
First Amendment analysis, while others raise the question of whether
professional speech occupies a special niche of more limited scrutiny. Still others raise questions about commercial
speech doctrine and its application to medical or health-related information. A comprehensive theory uniting all situations
is still wanting. Delineating family
resemblances may be all that is possible.
Building on the work of Robert Post, Eugene Volokh, Jack Balkin, and
others, this conference explores this territory.
Government Funded Health Activities
One cut at the
issues distinguishes disputes involving government funding of regulated
activities from nonfunded situations. At
one pole is Rust v. Sullivan, 500 U.S
173, (1991), which upheld restrictions on doctors discussing abortions funded
under a Title 10 federal contraceptive program.
The Court found that the program in essence funded government speech by
private doctors, thus allowing the government leeway in limiting what funded
doctors could say to patients treated under that program. At the other pole is Legal Services Corp. v. Velasquez, 531 U.S. 533,(2001), which struck down a restriction
on LSC lawyers challenging welfare laws on behalf of their clients. Finding that the LSC was intended to support
a diversity of views, the Court held that the restriction constituted a
viewpoint restriction and could not stand.
Future funding of medical and health activities conditioned on mandates
to speak or refrain from speaking will have to navigate the space between Rust and Velasquez, and other conditional funding cases.
funding is not involved, the analysis of government regulation of medical professional
speech directly implicates the First Amendment. Conceptually, the analysis will be the same
whether the state is mandating or is restricting speech. To get a flavor of the area, however, it is
useful to consider cases that group into one or the other category.
One set of cases involves
mandates for health professionals to convey certain information in their
interactions with patients. Many of
these arise in the abortion context with mandated disclosures about abortion
risks, fetal status, etc. Before getting
to the First Amendment, those laws must first surmount the undue burden hurdle
of Planned Parenthood of Southeastern Pa.
v. Casey, 505 U.S. 833 (1992). What
counts as an undue burden is now in flux, with lower courts disagreeing about
how much judges must balance rationally based state regulatory interests
against the access burden they place on women.
This question, which only the Supreme Court can answer, has arisen most recently with state
requirements that abortion providers have local hospital staff privileges and
that clinics meet the licensing standards for ambulatory surgical centers. See Whole
Women’s Health v. Lakey, No 14-50928 (5th Cir. 2014).
If no undue burden
is found, a separate First Amendment question about how vigorously the state
may limit professional speech may still arise.
Do licensed professionals retain First Amendment rights in professional
relationships that are otherwise subject to state regulation? Many scholars would argue that even if the
state has wide regulatory power over professional activity, the First Amendment
requires that speech mandates (or restrictions) must survive intermediate
rather than rational basis scrutiny. If
this is correct, mandates that meet a rational basis test and thus, according
to some courts, do not constitute an undue burden on abortion, may still fail
an intermediate scrutiny test for justifying the mandated speech.
On the other hand, disclosures that involve
true information, such as sonogram images of the fetus, may violate not violate
Casey if compelling sonograms does
not stop women from having abortions or substantially increase their
distress. Nor would it necessarily
violate the physician’s residual speech rights, if the information is true,
does not create a substantial burden on them, and may enhance understanding. In other reproductive settings mandates might
raise commercial speech issues. Greater Baltimore Center for Pregnancy
Concerns, Inc. v. Baltimore, 721 F.3d 264 (2013), a case involving a municipal
requirement that limited service pregnancy centers post signs that they did not
offer abortion, suggested that a commercial speech analysis is the best
approach to mandates directed at preventing deceptive practices.
Free speech issues
also arise when the government restricts what professionals might say to
patients and clients. One set of such
issues arises with restrictions on professionals treating patients in ways that
a medical consensus finds unsound or harmful. The court Circuit in Pickup v Brown , 728 F.3d 1042 (9th
Cir., 2013) upheld a California law banning sexual orientation change efforts
(SOCE) on the ground that the therapy, though almost entirely talk-oriented,
operated as conduct and thus fell outside a stricter First Amendment
analysis. In contrast, the court in King v. Governor of New Jersey No.
13-4429 (3rd Cir. 2014) upheld a New Jersey law banning SOCE even
though it found that SOCE was speech and also that the state had regulatory
powers over what professionals might say.
The court went on to recognize that although professional speech rights
were more limited, the state must still satisfy intermediate scrutiny in
regulating professional speech. The
strong evidence that SOCE therapy harmed patients met that scrutiny.
Where there is no
question of whether speech or conduct is involved, such as laws that ban
physicians from asking patients questions about whether there are firearms in
the home, a straight forward First Amendment analysis will apply. That law is content-based, but because it
limited physicians to asking patients only about matters that directly affected
their health care, it fell within the state’s right to keep doctor-patient
conversation focused on patient interests.
See Wollschlaeger v. Florida, No.
12-1409 (11 Cir., 2014).
Opponents of the law might still argue that general questions
about firearms in the home is relevant to patient health in many settings. However, Wollschlaeger
appears to require a closer nexus.
important set of government restrictions on medical and health related speech
arise from FDA bans on advertising or promoting off-label uses of approved
drugs. This has been a contested area
for many years, with opponents drawing on commercial speech cases to argue that
such a ban oversteps the government’s regulatory power. For example, the court in United States v. Caronia, 703 F.3d 149
(2d Cir. 2013) found that a drug
representative’s misdemeanor conviction for orally promoting off-label use was
a violation of his right to engage in constitutionally protected commercial
speech. However, even if Caronia’s reasoning holds, the FDA may
be able to define safe harbors for off-label promotion. A more narrow basis for such a ban, such as
off-label promotions in which safe harbors for “substantial clinical
experience” or “substantial evidence” exists, is more likely to respect
commercial speech rights. See Aaron S. Kesselheim & Michelle Mello,
“Prospects for Regulation of Off-Label Drug Promotion in an Era of Expanding
Commercial Speech Protection,“ 92 N.C.L. Rev. 1539 (2014).
overview gives a sense of the breadth and importance of speech restrictions and
mandates in medical and public health contexts.
Even if a unifying theory is not available, consistent recognition of speech
values in each setting is a major challenge.
John A. Robertson is the Vinson & Elkins Chair at the University of Texas School of Law. You can reach him by e-mail at JRobertson@law.utexas.edu