EastBay Today

Feature
Posted January 6, 2017

Is Your Physician Being Censored?

Assistant Professor Jason Smith says politicians are the fly on the wall in your doctor ’s office

When California Gov. Jerry Brown signed a landmark bill into law banning physicians from engaging in same-sex orientation change efforts on minors — the practice of converting same-sex attraction to heterosexual attraction in children and teens — he had these celebratory words for Twitter: “These practices have no basis in science or medicine, and they will now be relegated to the dustbin of quackery.”

Though the anti-conversion law easily passed in California (the Senate voted 23-13 and the State Assembly 51-22), Brown’s success was immediately challenged by a group of medical practitioners and parents claiming it infringed on their First Amendment rights. 

The group initiated two appeals, including at the federal level, where the U.S. Supreme Court refused to even hear the case, effectively upholding California’s decision.

While most people following the case (Pickup vs. Brown) were concerned with the topic at hand — the protection of minors versus the rights of their parents — Cal State East Bay’s Assistant Professor Jason Smith, J.D., had his eye on a deeper issue, one that is currently playing out on the national stage:

“The question is, when your physician is speaking to you, is that the practice of medicine and can I regulate it, or is it speech, which is not regulated?” he says. “And on the client side … do you want to know if your physician is being restricted by law from telling you something?”

According to Smith, the answer varies widely from state to state, where courts are struggling to define boundaries between the wide berth of freedom of speech and the strict confines of professional conduct across a variety of medical cases.

“The question is, when your physician is speaking to you, is that the practice of medicine and can I regulate it, or is it speech, which is not regulated?”

It’s the subject of work coauthored by Smith and Professor Wendy Parmet of Boston’s Northeastern University School of Law. The pair recently published a paper in the New England Journal of Medicine and have presented another at the Ohio Law Review Symposium on the First Amendment.

Together, the legal scholars (Smith also obtained a master’s in theological studies from Harvard before completing his J.D. at Northeastern) are exploring the different ways states are handling cases he calls “culturally contentious” — concerning sexual orientation, abortion and gun control.   

Of those examples, he points to the case that inspired him and Parmet to start writing — the Florida’s Firearm Owners Privacy Act, which marked a pivotal moment in the regulation of physician speech by prohibiting doctors from asking patients if they have guns in their homes. Similar to inquiries about seatbelt use, smoking, exposure to lead paint and so forth, gun ownership is routinely questioned during medical exams and recommended by the American Academy of Pediatrics, American Medical Association and others. Subsequently, a physician challenged the new law in court.

On the one hand, some patients claimed doctors were infringing on their Second Amendment rights by discouraging gun ownership. On the other, physicians asserted that the number of youth injured and killed by guns made the issue a public health matter that they should be involved in screening for. (“There’s a lot of data that firearms in the home are dangerous to those living in the home, and that most firearm deaths are accidental or unintentional,” Smith says.) Floridians battled it out from 2011-14, when the law was finally settled in favor of patients’ right to privacy.

In addition to telling doctors what they can’t say, Smith says legislation is also being introduced that can force them to slant medical facts toward desired outcomes, frequently in support of a political view rather than the patient’s best interest.

“In some states, doctors are required to tell [their patients] that women who have abortions are prone to depression and suicide — even though that’s not remotely true,” he says. “Most of us would be upset, whether we believe in abortions or not, whether we believe in gun ownership or not, to know that someone’s interfering [in our care] for a reason unrelated to our personal health.”

And the laws are contagious. Since Florida’s decision in favor of gun owner privacy, the AMA reports a dozen other states have considered similar legislature. According to The Human Rights Campaign, an LGBT advocacy group, several jurisdictions have either followed California in banning same-sex orientation change efforts on minors or are considering doing so. But that still leaves the door open, according to Smith, for more conflicting laws to be passed elsewhere, which could ultimately land these cases before the U.S. Supreme Court.

“These cases are cropping up across the country and they’re all being handled differently, which creates a climate that is ripe for review by the Supreme Court,” he says. “If the Supreme Court changes the doctrine for everybody and says, ‘No, you cannot regulate what physicians do in that way’ then things like the same-sex orientation law in California would likely be overturned. The Supreme Court would have huge implications for the long-term.” 

Smith is also wary of “the slippery slope”: Although he supports regulation of professional conduct and licensing, he’s concerned about physician speech being increasingly clipped by special interests. “I think the danger is some people learning from these other models and trying to apply them for their own use. People asking, ‘What other things do we not want discussed? Could I pass a law that says you can’t discuss pesticides or carcinogens with your patients?’ Something like that could be a big deal in California.”

What then, is the answer?

For constituents, political engagement may be key. “Pay attention to what’s going on in your state and local legislature,” Smith says. “With our current political climate, there could be certain groups or factions in the U.S. who feel emboldened to try and pass new regulations. I think you’ll see more and more attempts of states trying to pass new laws — restricting access to abortion in particular, since that was specifically discussed during our recent elections.”

Smith predicts there’ll also be big news coming out of Congress. Although Florida’s gun privacy law is in place for now, it continues to go through the judicial appeals process. The case was recently re-heard by a panel of three judges, who couldn’t come to an agreement on the ruling, so it will now move on to “en blanc” (in bench) review, wherein every judge in the district will take a look at the case. Depending on the outcome in the Eleventh Circuit Court of Appeals, the next step may be requesting that the Supreme Court review the case, which would create precedent for the rest of the country.   

But, the final word, in the professor’s opinion, is not a matter of more or less regulation, but de-politicizing the doctor-patient relationship entirely.

“Abortion, guns, same-sex conversion therapy — they’re all contested cultural and political issues,” he says. “I think the question is, do we want to have the argument about those issues in the doctor’s office? And without knowing it? If we all agree that the doctor’s focus should solely be the health of this patient, then the regulation of the practice of medicine should support that — and only that.”

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