Back in December I noted that two different California federal judges had come to different conclusions about whether California's law banning anti-gay "conversion therapy" practiced against minors violated the First Amendment.
I promised to study the decisions and get back to you. I didn't, because I am fundamentally lazy and unreliable and frankly am just not that into you. I did give a radio interview about the case to June Grasso of Bloomberg Law, because I like to hear myself talk and she is interesting even if you really are not. Sorry; I just think we need some honesty in this relationship.
Anyway, today the Ninth Circuit weighed in, rejecting the First Amendment challenge to the statute. The opinion is here. It's a bit dense but worth a read for anyone interested in First Amendment issues or the various challenges to "conversion therapy," which legal issues aside I view as part of a continuum of frank evil.
The Ninth Circuit noted that the California law defined "conversion therapy" as:
“any practices by mental health providers that seek to change an individual’s sexual orientation[,] . . . includ[ing] efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” Cal. Bus. & Prof. Code § 865(b)(1).
The law provides that:
A licensed mental health provider’s use of SOCE on a patient under 18 years of age is “considered unprofessional conduct,” which will subject that provider to “discipline by the licensing entity for that mental health provider.”
The first question the Ninth Circuit addressed is a meta one: what level of scrutiny does the law require in the face of a First Amendment challenge? Depending on the nature of the right involved, a constitutional challenge can require a mere "rational basis" test (a low hurdle — usually) or as rigorous a test as "strict scrutiny" (which requires that the government prove that the law is supported by a compelling government interest and that it is narrowly tailored to advance that interest). Laws evaluated under a rational basis test usually survive; laws evaluated under strict scrutiny often fall.
The central question here was this: is a regulation of a mode of therapy a regulation of speech (which often invokes strict scrutiny) or a regulation of conduct (which usually doesn't)? In other words, is the law against conversion therapy like the law requiring licensing of therapists, which the Ninth Circuit upheld as regulating conduct, or like the law prohibiting doctors from recommending marijuana to patients, which the court struck down?
The court drew these lessons from those cases:
We distill the following relevant principles from NAAP and Conant: (1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself; (2)
psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation.
The Court further pointed out that the practice of medicine exists along a continuum, with some activity more like pure speech and therefore subject to the most robust protections, some activity in the middle, and some subject to strict regulation:
At one end of the continuum, where a professional is engaged in a public dialogue, First Amendment protection is at its greatest. Thus, for example, a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment—just as any person is—even though the state has the power to regulate medicine.
. . .
Moreover, doctors are routinely held liable for giving negligent medical advice to their patients, without serious suggestion that the First Amendment protects their right to give advice that is not consistent with the accepted standard of care. A doctor “may not counsel a patient to rely on quack
medicine. The First Amendment would not prohibit the doctor’s loss of license for doing so.”
. . . .
At the other end of the continuum, and where we conclude that SB 1172 lands, is the regulation of professional conduct, where the state’s power is great, even though such regulation may have an incidental effect on speech. See id. (“Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the professional’s speech is incidental to the conduct of the profession.”). Most, if not all, medical treatment requires speech, but that fact does not give rise to a First Amendment claim when the state bans a particular treatment. When a drug is banned, for example, a doctor who treats patients with that drug does not have a First Amendment right to speak the words necessary to provide or administer the banned drug.
The Court ultimately placed the conversion therapy law at the end of the spectrum regulating conduct.
Senate Bill 1172 regulates conduct. It bans a form of medical treatment for minors; it does nothing to prevent licensed therapists from discussing the pros and cons of SOCE with their patients. Senate Bill 1172 merely prohibits licensed mental health providers from engaging in SOCE with minors. It is the limited reach of SB 1172 that distinguishes the present cases from Conant, in which the government’s policy prohibited speech wholly apart from the actual provision of treatment. Under its police power, California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful and, under Giboney, 336 U.S. at 502, the fact that speech may be used to carry out those therapies does not turn the prohibitions of conduct into prohibitions of speech.
Therefore, the Ninth Circuit decided to apply only a rational basis test, which the law easily passed, given the California Legislature made factual findings based on research that conversion therapy harms kids. The Court noted it was not finding that a law preventing conversion therapy of adults would pass muster.
Next, the Ninth Circuit rejected a freedom of association argument. "Therapists are free, but not obligated, to provide therapeutic services, as long as they do not 'seek to change sexual orientation.'"
Next, the Ninth Circuit rejected a vagueness challenge. The plaintiffs had asserted, for instance, that it was not clear if the law prohibited them from handing conversion therapy literature to a patient. "A reasonable person would understand the statute to prohibit only mental health treatment, including psychotherapy, that aims to alter a minor patient’s sexual orientation."
Finally, the Court rejected an argument that by banning conversion therapy California had intruded into parents' fundamental right to determine their children's medical treatment. The Court reasoned that cases have found that states may compel certain treatments over parental objections (like vaccinations), may impose measures like curfews over parental objections, and may prohibit anyone from undergoing certain types of medical treatments, like drugs not approved by the FDA or treatments from doctors not deemed qualified. "[I]t would be odd if parents had a substantive due process right to choose specific treatments for their children—treatments that reasonably have been deemed harmful by the state—but not for themselves."
The Court therefore reversed the district court case that struck down the law, and affirmed the case that upheld it.
I find conversion therapy revolting and question the qualifications and professionalism of those who profess it. Nonetheless I think it is a good thing that courts carefully considered First Amendment and due process attacks on the statute. I think, upon reading the opinion and reflecting more on the law, that the Ninth Circuit's decision is probably correct under existing precedent. I say that despite my misgivings about state attempts to regulate unpopular speech.
The persuasive force of the Ninth Circuit's ruling comes from two key points. First, you can't logically object to this law in particular without objecting to the entire structure of medical regulation that the courts have permitted. In other words, if you argue that parents have a fundamental right to inflict conversion therapy on their children, I think you have to argue they have a fundamental right to select "doctors" without medical degrees or doctors who will prescribe Laetrile or even doctors who will use therapies that could be affirmatively harmful to kids, like (for instance) unregulated rebirthing therapy.
Second, the law does not prohibit conversion therapy of adults, and does not prohibit speech endorsing or encouraging conversion therapy. As the Ninth Circuit acknowledges, California licensed therapists can lobby and agitate for conversion therapy, tell patients and their parents they support it (and that the patient should seek it elsewhere), express their views about homosexuality and conversion therapy, recommend the therapy once the patient reaches adulthood or in other jurisdictions, and even refer minors to unlicensed persons like ministers who are free to inflict conversion therapy.
In short, I'm not sure how you can logically strike down this law — or even subject it to strict scrutiny — without striking down every law and regulation of medical practice that touches on any remotely controversial practice.
Last 5 posts by Ken White
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