A battle over an Arkansas law that bans doctors from referring transgender kids for gender-affirming care is testing the bounds of free speech protections in the doctor’s office.
Arkansas says it has the right to regulate doctors’ professional conduct “even if the conduct incidentally involves speech.” But because the law prevents health-care professionals from speaking—and their patients and parents from hearing—about medically accepted treatments, the American Civil Liberties Union Foundation and its Arkansas chapter say it’s unconstitutional.
The fight threatens to limit the autonomy doctors have to determine the best course of care for their patients and is likely to add to a growing discourse among courts over the scope of First Amendment protections when states try to insert themselves in the doctor-patient relationship.
“It’s usually not a problem as long as a state regulation of the professional practice tracks medical insights,” or the professional knowledge, said Claudia Haupt, an associate professor of law and political science at Northeastern University School of Law.
“The real problem arises when the state tries to regulate something as a practice of medicine in a way that contradicts medical insights.”
The state says it passed the Save Adolescents from Experimentation, or SAFE, Act in response to an increase in what it called experimental gender-transition procedures being used to treat kids with gender dysphoria.
The law, which was blocked by a federal district court judge in July, prohibited health-care providers from performing or referring children for any medical or surgical service to assist with a gender transition. These services include gender reassignment surgeries and puberty-blocking drugs, which Arkansas said can irreparably harm children.
Gender dysphoria in a minor is typically treated with puberty-blocking drugs, which are reversible, but they aren’t recommended until girls and boys first exhibit the physical changes of puberty.
Sex hormone treatment isn’t recommended until a minor has the mental capacity to give informed consent, which is typically by the age of 16, under medical guidelines from the Endocrine Society. Gender-affirming genital surgeries are not recommended until, and typically only available once a patient has reached the age of 18.
In a statement to Bloomberg Law, Arkansas Attorney General Leslie Rutledge (R) said the law protects children from life-altering treatments and prevents practitioners from circumventing those protections by sending children to other health-care providers.
“This is a regulation of the practice of medicine, not speech,” she said.
The ACLU, which is challenging the law on behalf of six transgender minors and their parents, says there’s nothing experimental about gender-affirming medical interventions.
They “are widely recognized in the medical community, including by the major professional medical associations, as medically necessary for the health and well-being of some adolescents suffering from gender dysphoria,” the civil rights group said in a court filing.
In issuing the temporary order, U.S. District Court Judge James Moody Jr. said the law likely violates the First Amendment.
He said the law “is content and viewpoint-based regulation because it restricts healthcare professionals only from making referrals for ‘gender transition procedures,’ not for other purposes” and “as such, it is presumptively unconstitutional.”
Arkansas is now appealing that temporary order, and the U.S. Court of Appeals for the Eighth Circuit is expected to schedule arguments soon.
The extent to which the First Amendment can be used to shield doctors from state laws regulating their conduct has been fought over before. It’s come up most often when states pass health laws involving hot button social issues like abortion; gun control; or lesbian, gay, bisexual, and transgender (LGBT) rights.
So far courts have been handling the question differently.
The Eighth Circuit in 2012 said South Dakota hadn’t violated doctors’ First Amendment rights when legislators passed a law requiring physicians to tell patients who are seeking an abortion that the procedure carries an increased risk of suicide.
The Third Circuit in 2014 rejected a First Amendment challenge that licensed counselors brought against New Jersey after it passed a law banning conversion therapy for minors. The appeals court said the state has a substantial interest in protecting kids from the harmful effects of this kind of therapy, which aims to change a person’s sexual orientation from homosexual or bisexual to heterosexual.
And the Eleventh Circuit in 2017 ruled Florida had violated doctors’ free speech rights when it passed a law restricting physicians from asking patients whether they own a firearm.
When states regulate what a doctor can and can’t say in order to ensure medically relevant information gets disclosed to the patient, there’s no First Amendment issue, said Robert Post, a Sterling professor of law at Yale Law School.
But when states regulate doctor speech to preclude medically relevant information from being disclosed or to require the doctor to say things that are false, then there’s a First Amendment issue, he said.
2018 Supreme Court Decision
The Supreme Court hasn’t ever recognized “professional speech” as a separate category of speech that’s protected by the First Amendment.
Justice Clarence Thomas said so in 2018 when the court struck down a California law requiring pregnancy care centers—often run by faith-based groups—to notify women that California provides free or low-cost abortions, and provide a number for them to call. Because the law forced pregnancy centers to speak a particular message, the court said it violated their First Amendment rights.
In the majority ruling, Thomas said speech is not unprotected merely because it is uttered by professionals. He also noted that medical malpractice laws and laws requiring physicians to obtain informed consent from a patient before they perform a procedure are allowed even though they may burden free speech.
There is no First Amendment defense against a malpractice claim.
The professional standard is the bar that determines whether a doctor can be held liable for negligence or not, Haupt said. She thinks professional standards should also determine if a state law regulating doctor speech violates the First Amendment.
If a state intervenes in the doctor-patient relationship with a message that doesn’t align with professional insights, “ultimately it causes harm to the patient’s and professional’s autonomy interest to make their own decisions,” she said.
The case is Brandt v. Rutledge, 8th Cir., No. 21-02875.