Conversion Therapy Ruling Radically Upends Professional Standards

When professionals counsel their clients or patients, is their advice conduct that’s sanctionable by licensing bodies and subject to malpractice liability? Or are their words free speech that’s shielded by the First Amendment to the US Constitution?

Courts have policed that blurry border for generations. Judge-crafted doctrines have enabled enforcement of professional standards of care. Doctors and lawyers whose advice is contrary to professional convention risk disciplinary sanctions and tort liability.

In theory, the First Amendment could bar this coerced conformity. In practice, courts have categorized professional advice that departs from broadly accepted standards as speech that’s merely “incidental” to “conduct,” part of professional “practice,” and thus beyond the First Amendment’s reach.

This framework has long preserved the authority of professions to establish and impose norms of practice that cover communication with clients and the public. But the US Supreme Court’s March 31 ruling in Chiles v. Salazar radically disrupts this framework. It dramatically shrinks the authority of professions and government to marshal the law to limit what individual professionals can say.

On its face, Chiles speaks to whether the First Amendment prohibits states from banning psychotherapy—so-called conversion therapy—that aims to change patients’ sexual orientation or gender identity.

Chiles held that such bans are subject to “strict scrutiny” (which they can’t survive) because they stymie constitutionally protected expression. Justice Neil Gorsuch, writing for the majority, professed to limit the decision’s application to laws that ban treatments consisting only of speech.

Rejecting Justice Ketanji Brown Jackson’s contention, in dissent, that “[t]alk therapy is a medical treatment,” subject to regulation as “conduct,” Gorsuch said a psychotherapist “seeks to engage only in speech,” which doesn’t “become conduct just because it can also be described as a ‘treatment.’”

Insisting on his opinion’s narrow scope, he distinguished prescription of “medication,” “medical devices,” or “aversive physical interventions”—acts he cast as outside the First Amendment’s protective reach.

Yet Gorsuch’s opinion is breathtaking in its implications for the traditional authority of professions to set enforceable standards for their practitioners.

He acknowledges this toward the end of the opinion. “A prevailing standard of care,” he writes, “may reflect what most practitioners believe today, but it cannot mark the outer boundary of what they may say tomorrow.” To silence “any professional speech that deviates from ‘current beliefs about the safety and efficacy of various medical treatments’” would constitute “enforced conformity,” Gorsuch asserts.

This sweeping language is cause for celebration for physicians who profess to the public or their patients that vaccines cause autism, or pet deworming drugs cure Covid-19, or Vitamin A is the best way to prevent measles.

All of these claims—and others promoted by professionals who’ve gone rogue with respect to prevailing standards—are contrary to “current beliefs about … safety and efficacy.” Medical licensing boards have sanctioned practitioners for pressing such claims. Physicians who purvey them to their patients face tort liability for harm that ensues when patients go along.

Chiles casts this accountability into a sea of doubt. It exposes regulatory and common-law enforcement of professional standards to strict scrutiny’s lethal effect whenever these standards can be plausibly characterized as constraints on speech.

Prevailing clinical standards aren’t always science-driven (though science strongly supports the judgment that conversion therapies are harmful). Standards of care are also the product of inferences from incomplete data and balances between risks and benefits. As the Supreme Court observed in Chiles, these standards sometimes seem profoundly wrong in retrospect.

Yet the law has long seen fit to adopt and enforce them, out of belief that the health professions are best positioned to make wise clinical judgments in the face of uncertainty and to adjust as science and values evolve.

First Amendment doctrine has made uneasy accommodation, allowing space for suppression of non-conforming professional pronouncements. Chiles upends this accommodation.

Expect purveyors of unorthodox medical beliefs and practices to mount First Amendment challenges to law that restrains them. That we live in an era of shrinking regard for medicine’s cultural authority makes a surge of such challenges more likely.

Chiles’ disruption of professional authority over practitioners gone rogue may have even greater implications for attorneys. Lawyering is, as Jackson said of psychotherapy, “administered through words.”

Will attorneys who insists to a tribunal, contrary to all evidence, that the 2020 (or 2026?) election was stolen be subject to discipline—even disbarment? Or might the First Amendment now enable their impunity? Is frivolous litigation protected speech because, after all, it’s mere “words”? Do lawyers now have freer rein to insult judges, coach witnesses, or give terrible advice?

Perhaps courts will craft doctrines to preserve professional accountability in Chiles’ wake. But Chiles will likely spawn a spate of challenges to limits on what professionals can say to patients or clients, or on their behalf.

These challenges will play out amid surging distrust of experts’ counsel and rising skepticism over restrictions on contrarian expression. Gorsuch’s opinion evinces this skepticism. The 8-to-1 majority he mustered is a measure of its rapid spread.

The case is Chiles v. Salazar, U.S., No. 24-539, opinion 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.

Author Information

Dr. M. Gregg Bloche is the Carmack Waterhouse Professor of Health Law, Policy, and Ethics at Georgetown Law.

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