Wednesday, October 15, 2014

Physician Conduct? Or Speech? Or Both?

Guest Blogger

Jennifer Keighley

For the conference on Public Health in the Shadow of the First Amendment

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

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