Doctors Can’t Be Made to Check Their Judgment at Exam Room Door

The US Supreme Court’s 8-1 decision that doctors and therapists don’t have to march in lockstep with a state-crafted consensus isn’t just a win for the First Amendment rights of practitioners. It’s also a win for the First Amendment rights of their patients.

We are all better off when our health care professionals can speak their minds.

In Chiles v. Salazar, therapist Kaley Chiles challenged a Colorado law that banned therapists from expressing certain viewpoints on gender and sexual orientation with minor clients. Basically, a therapist could express support for a client’s gender transition or sexual orientation, but they couldn’t question it or encourage detransition, even if that’s what the client wanted.

The Supreme Court, over Justice Ketanji Brown Jackson’s dissent, said Colorado had gone too far. It had done more than to enforce a standard of care; it had attempted to shut down a viewpoint of which it disapproved.

The First Amendment, says the court, “rests instead on a simple truth: The people lose whenever the government transforms prevailing opinion into enforced conformity.” While the court sent the case back to let the lower courts have the final say, its holding is almost certain to be a death knell for Colorado’s law.

Justice Jackson, the sole dissenter, argued that enforcing a standard of care involves shutting down certain viewpoints. She seem to worry that the majority decision hobbles state regulators from holding the line against quacks doling out tapeworm pills for weight loss or cocaine for toothaches. She envisioned a dark future: “We could now be standing on the edge of a precipitous drop in the quality of healthcare services in America.”

In truth, we are all better off when medical practitioners can speak their minds. Contrary to Justice Jackson’s fears, quality of care improves when practitioners can challenge consensus.

Imagine a world in which John Snow, the father of modern epidemiology, couldn’t have challenged the false consensus of London’s medical community that cholera spread by miasma, not tainted water as Snow believed.

Imagine a world in which states had the power to lock in the prevailing consensus on eugenics in the early 1900s, or the medical consensus that smoking was harmless if not beneficial, or the psychiatric consensus in the 1950s that homosexuality was a mental disorder.

Or consider a recent example: consensus on Covid-19. In 2022, California passed a law forbidding doctors from defying the “contemporary scientific consensus” on Covid-19 when advising patients. Of course, that “consensus” at the time was about as consistent as the Star Wars canon. Rightly, a federal court enjoined the law, and the legislature dropped it soon after. When it comes to consensus, we are no better than our forebears and need dissenters and dissidents as much as they did.

In Justice Jackson’s view, regulators are the heroes of modern medicine. They keep the quacks at bay. They ensure practitioners meet a high standard. But how can we improve upon the existing standard if we can’t question it? Maybe free speech and a free market are the real heroes of the story—the freedoms that allow us to probe, innovate, and break free from our priors.

While Justice Jackson accepts that medical practitioners can advocate for their views in the public square, that means little if they cannot share their views with patients in the doctor-patient context. It is that culture of innovation that has given us miracles such as telehealth, for example. Telehealth is, in fact, one of the likely beneficiaries of the court’s holding in Chiles, as some states have sought to limit it.

Yet, in Justice Jackson’s worldview, state regulators should be free to prohibit patients from meeting with telehealth practitioners that aren’t licensed in the patient’s state if the state claims such regulation necessary to ensure quality care. Such laws have had serious consequences for patients such as Jun Abell, who has thus far survived childhood cancer in part because he could meet with a specialist outside his state, but he now no longer can because of New Jersey’s ban on out-of-state telehealth.

Sometimes, state regulators are the villains in the fight for quality care because they have a vested interest in curbing innovators that threaten to outcompete them.

This doesn’t mean that state regulators can’t enforce certain standards. There’s quite a difference between demanding that a surgeon washes his hands before he digs around inside of you and forbidding physicians from discouraging the Covid-19 vaccine for the young and healthy.

State regulators can try to make sure you don’t end up with a sponge sewn up inside of you, but they can’t forbid a physician from recommending a course of treatment that departs from the prevailing view.

Does this mean that medical professionals might end up free to say dumb, even dangerous, things? Probably. But the First Amendment reflects, as the majority in Chiles put it, “a faith in the free marketplace of ideas as the best means for discovering truth.”

Free trade in ideas presents dangers and risks, but it pales to the greater danger, a world in which we let flawed rulers become the untouchable arbiters of truth.

The case is Chiles v. Salazar, U.S., No. 24-539, 3/31/26.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

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Ethan Blevins is a senior legal fellow at the Pacific Legal Foundation.

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