Two of the biggest storylines from last month’s elections involved battles over same-sex equality rights and the decriminalization of marijuana. On the surface, these two topics seem to have little in common. But the intense controversies they are generating on the American political landscape arise from a similar kind of generational and demographic divergence of attitudes between older, whiter, Red-state voters on the one hand, and younger, more racially diverse and more Blue-state voters on the other. Both issues also raise prominent questions about federalism: the relationship between state laws and state experimentation with federal supremacy and uniformity. And, as we explain in more detail in this column, the two controversies continue to be connected in unnoticed and unexpected ways.
SB 1172—California’s Attempt to Rein in Sexual Orientation Change Efforts (SOCE)
Take, for instance, an important legal development in the same-sex equality arena. We speak here not of the important decisions by the U.S. Supreme Court two weeks ago to accept review in cases involving California’s ban on same-sex marriage, Proposition 8, and the federal law defining marriage for federal purposes as being between only a man and a woman, the Defense of Marriage Act (DOMA). Instead, we are referring to a recent pair of federal district court decisions from Sacramento addressing constitutional challenges to SB 1172, an attempt by California to protect gay and lesbian teens by prohibiting mental health providers from engaging in so-called “conversion therapy.”
Finding that “[a]n individual’s sexual orientation, whether homosexual, bisexual, or heterosexual, is not a disease, disorder, illness, deficiency, or shortcoming,” and that “there is no evidence that any type of psychotherapy can change a person’s sexual orientation,” California lawmakers amended the State’s Business and Professions Code to prohibit these providers from undertaking “sexual orientation change efforts” (SOCE) with minors—defined as persons under the age of 18. The term “mental health provider” in the statute applies to a long list of state-licensed or state-registered mental health care professionals, such as psychiatrists, psychologists, and clinical social workers, as well as any other person who is designated a mental health professional under California law. “Sexual orientation change efforts” means any practices by mental health providers that seek to change an individual’s sexual orientation.
SOCE methods vary. Some therapies, described as aversion treatments, involve the use of negative reinforcements including induced nausea, electric shocks, shame aversion and other aversion techniques. Non-aversion treatments include the use of hypnosis and various educational and therapeutic efforts to facilitate and reinforce other-sex sexual behavior.
A number of affected mental health professionals sued to block the law’s enforcement on the ground that, because SOCE efforts often take the form of communication between therapist and patient, the First Amendment prevents the state from regulating what the content or substance of that communication can be. One district judge (William Shubb) issued an injunction against the law’s implementation, agreeing with the plaintiffs’ argument, and another district judge (Kimberly Mueller), in a separate but similar lawsuit, declined to block the law, finding that its enforcement was unlikely to violate anyone’s free speech rights.
Importantly, whether one agrees with Judge Shubb or Judge Mueller depends in large part on how one interprets a decade-old case from the U.S Court of Appeals for the Ninth Circuit that involved, you guessed it, state decriminalization of marijuana.
The Central Importance of a Marijuana Case to the Cases Relating to SOCE
The 2002 marijuana case, Conant v. Walters, involved a challenge to then-U.S. Attorney General John Ashcroft’s policy of threatening federal investigation and revocation of federally granted prescription privileges for any doctors who “prescribe or recommend” to their patients the use of marijuana for medical purposes. The dispute arose because, in 1996, California adopted an Initiative (Proposition 215) that changed the State’s penal laws to decriminalize the use of marijuana by individuals who use the drug upon “recommendation” of a physician. The Ashcroft Justice Department conceded that a state may choose to decriminalize whatever it wants to, under state law: What is criminal under California’s law is for California to decide. But Ashcroft pointed out that any possession and use of marijuana – which is federally classified as a Schedule I controlled substance, for which there are no permissible uses – remains a violation of federal criminal law, no matter what the status of marijuana use may be under state law, and no matter whether the marijuana use is medically-related or not. (The U.S. Supreme Court later upheld this federal law, the Controlled Substances Act, or CSA, against a challenge contending that Congress did not have the power to regulate local, medicinal marijuana possession and use in 2003, in the well-known Gonzales v. Raich case.)
Based on the CSA, the Justice Department argued in Conant that a doctor who prescribes for, or recommends to, patients the use of such Schedule I controlled substances has forfeited his privilege to prescribe narcotics, a federally conferred license reserved, under the CSA, for doctors who act in the “public interest.”
The Ninth Circuit in Conant blocked the Ashcroft policy, with two judges opining that by prohibiting recommendations, the federal policy impermissibly interfered with the First Amendment rights of doctors to communicate with their patients. The third judge, Alex Kozinski, who is often characterized as having libertarian instincts, joined in this First Amendment reasoning, but also argued that the Ashcroft policy violates the “new Federalism” cases—decided by the Supreme Court over the last few decades—that try to insulate state government from federal bullying. (More on that later.)
Why Conant Was Problematic Under First Amendment Theory and Doctrine
One of us (Vik Amar) wrote an essay that was rather critical of the Conant case when it came down. Although the Ninth Circuit’s First Amendment arguments had surface plausibility, they did not withstand careful scrutiny:
As to the free speech rationale, the Ninth Circuit failed to satisfactorily acknowledge that the First Amendment has traditionally allowed the government to regulate the professions in content-based ways. There may be a right to speak out in favor of medical marijuana, but that does not mean there is a right to do so as a doctor.
Imagine, for example, that a lawyer—rather than a doctor—was “recommending” to his client the use of an illegal drug. Even though such a recommendation would be “protected” by the First Amendment in that the lawyer could not be arrested and jailed for his speech (unless he was inciting his client to imminent unlawful conduct), there is no serious question but that the lawyer could be disciplined by the State Bar (and possibly stripped of his license to practice law) on the basis of his actions. This discipline and disbarment would be completely consistent with the First Amendment.
None of this is to say that government can dole out prescription privileges based on political viewpoints or party affiliations or government loyalty oaths. Clearly, some content-based conditions attached to the privilege of practicing medicine would violate the First Amendment.
Moreover, if government is forcing or encouraging doctors to give inaccurate or misleadingly incomplete information to patients, then free speech and privacy principles may converge to call such regulation into constitutional doubt. For example, in the famous and controversial case of Rust v. Sullivan, where the Supreme Court upheld by a 5-4 vote the so-called abortion gag rule imposed on doctors receiving federal funding, the Court did not adequately address the way in which the conditions imposed on doctors may have led them to affirmatively mislead their patients.
After reflecting on the questions raised by Conant for a decade, both of us continue to think that, as a general matter and putting aside partisan manipulation and/or fraudulent speech, the regulation of professional conduct generally, and the regulation of medical practice in particular, does not (or at least should not) raise free speech concerns that require rigorous judicial review.
First, conceptually, it is often necessary to distinguish between speech acts and speech, between speech that is part of a course of conduct and speech that that is essentially and exclusively speech for First Amendment purposes. Sometimes these can be hard cases. But in cases involving professional regulation, they are often relatively easy to resolve.
Take one profession adverted to above—the legal profession. Lawyers talk a lot. Indeed, much of what they do is undeniably describable as communicating. They argue in court to judges orally and in writing. They negotiate with other lawyers. They offer advice to clients. But the practice of law is heavily regulated. Lawyers are subject to a rigorous code of professional responsibility. The briefs they file in court are restricted as to size and content. The arguments presented in court are subject to judicial orders and judicial discretion. It is hard to imagine how the provision of legal services could operate even remotely smoothly if every rule and every judge’s decision limiting lawyer speech in some way required compelling justification because it was subject to rigorous judicial review under the First Amendment. Instead, the practice of law is understood to constitute professional conduct—not speech—and the regulation of the practice of law thus rarely raises free speech issues.
Second, and more specifically to the SOCE case, it should be obvious that the entire history and tradition of common-law and statutory regulation of the medical profession flies in the face of any contention that the licensing or control of medical practice by state authorities violates free-speech guarantees.
Consider another example, this one involving health care professionals. Joe goes to Dr. Smith complaining of back pain. Dr. Smith tells Joe to go home and engage in a series of stretching exercises to cure his discomfort. Joe does so but his condition deteriorates. In fact, accepted medical practice rejects the stretching exercises recommended by Dr. Smith because of the excessive risk that performing such exercises would render most patients’ back problems considerably worse.
If Joe sues Dr. Smith for worsening his back pain, he would be bringing a conventional medical malpractice case. In such a case, Joe can recover civil damages against Dr. Smith if he can prove that Dr. Smith acted negligently (unreasonably) in his provision of medical services to Joe. Generally speaking, what constitutes accepted medical practice in the community sets the standard of reasonable care in a medical malpractice case, and a jury will be asked to determine whether Dr. Smith’s treatment failed to satisfy that standard of care. And if Dr. Smith continued to tell patients with back problems to engage in these problematic stretching exercises, he would probably be called to account and disciplined by the State Medical Board.
Obviously, in this case, Dr. Smith’s recommended course of treatment involves speech. However, no one would think that this case raises a free-speech problem. There is no history or tradition suggesting otherwise. If the punishment of doctors who practice quackery had to be rigorously evaluated under the First Amendment lens, every malpractice judgment in a case like this one would have to be reviewed under strict scrutiny. The plaintiff or the State would have to persuade the court that the specific standard of medical care accepted in the state was much more than a reasonable way to promote public health. Instead, the court would have to be convinced that the standard of care was the least restrictive way to further a compelling state interest—an extremely difficult burden of justification to satisfy. Put simply, this is not the way courts do, or should, treat medical malpractice or medical discipline cases.
Finally, there are important federalism concerns at stake here. While the federal government has the power to regulate medical practice (and that is why Conant probably was wrongly decided), for the most part, the regulation of the medical profession is a matter of state and local concern. Not all states may choose to regulate doctors in the same way. Standards of care may vary from state to state. Some states may follow California in prohibiting SOCE as a medical treatment. Other states may decide otherwise.
If the regulation of medical treatment involving speech requires federal constitutional review, however, control over the regulation of medical practice in these cases shifts from the state to the federal government, and from the legislature to the judiciary. It is federal judges who will decide whether the standard of care implemented by state medical boards or interpreted by local juries can be justified. Federal judges would determine whether the harm allegedly caused by SOCE is adequately proven, or whether the harm caused to some patients by SOCE is outweighed by the alleged benefits experienced by other patients. And the decisions of those federal judges would be binding on every state subject to their authority. If this occurred, the dramatic expansion of free-speech doctrine (by its application to professional conduct involving speech) would substantially displace democratic decisionmaking and state autonomy.
Limiting and/or Distinguishing Conant in the SOCE Setting
We should note here that Conant was no model of clarity, and thus its application to the SOCE dispute could continue to generate differences of opinion, just as it did in Judge Shubb’s and Judge Mueller’s courtrooms. There is much language in Conant that could be read expansively to suggest that all communications between a physician and her patient, in the course of the provision of medical services, is protected by the free speech clause of the First Amendment and that, as a result, virtually any regulation of such communications must be justified under rigorous constitutional review.
But other parts of the Conant opinion suggest a more limited analysis. The Ninth Circuit conceded that recommending the medical use of marijuana should not be understood to be the same thing as aiding and abetting a violation of the Controlled Substances Act (which Congress could legitimately punish). Recommending is not prescribing, said the Ninth Circuit. Recommendation of marijuana does not necessarily make marijuana use a part of the ongoing medical treatment provided by the physician to his patient.
Pursuant to this argument, a physician recommending marijuana to his patient with the words, “You might consider marijuana as a way to control your nausea,” would be protected by the First Amendment. It would be a different case, however, if the physician instead told his patient, “This is what I want you to do. Purchase some marijuana. You can buy some at the dispensary on 4th St. Whenever you feel nauseous, you should smoke a joint. Come back in two weeks and we will evaluate your course of treatment.”
We do not think this distinction really should have mattered in Conant, since both kinds of recommendations are undertaken by the doctor as part of his professional treatment of the patient, so that what is being regulated by the federal government was the conduct of the delivery of treatment services, rather than speech itself. But we do acknowledge that because the Conant opinion seems in some places narrowly tailored to the specific regulation at issue there, it is not clear whether the Ninth Circuit would want Conant to extend the scope of the First Amendment protection of professional conduct to reach the SOCE situation.
Thus, while poorly written sections of the Conant opinion may justify an expansive interpretation of that decision—and it is understandable that Judge Shubb read it that way—there is also a plausible doctrinal argument for limiting the scope of Conant and distinguishing it from the free-speech challenges brought against SB 1172 and the regulation of SOCE. This is the approach taken by Judge Mueller—who pointed out that SB 1172 explicitly focuses on, and prohibits, the conduct of delivering a particular medical “therapy” or treatment—and it is one that the Ninth Circuit itself may embrace when it analyzes Conant if the SOCE cases are appealed (as is likely).
Another Important Link Between Conant and Same-Sex Equality, This Time in the DOMA Context
There is another important sense in which Conant—a marijuana case—may bear on same-sex equality cases, in particular, the DOMA case on which the Supreme Court recently granted review. In Conant, Judge Kozinski argued in his concurrence that by revoking doctors’ licenses, the federal government was preventing California from decriminalizing marijuana in its chosen way. “In effect,” wrote Kozinski, “the federal government is forcing the state to keep medical marijuana illegal. [And] preventing the state from repealing an existing law is no different from forcing [it] to pass a new one [which everyone agrees the federal government cannot do]; in either case, the state is being forced to regulate conduct that it prefers to leave unregulated.”
As one of us (Vik Amar) explained when Conant came down, this reasoning is open to serious question:
If the federal government were forcing California legislators or police to regulate on its behalf, there would be a problem under existing Supreme Court cases. But the feds are doing no such thing. Instead, they are simply regulating doctors themselves, and telling California that it may not immunize doctors from otherwise valid federal regulation.
To see the fallacy of Judge Kozinski’s argument, imagine that California had decriminalized marijuana use not on a recommendation of a doctor, but rather only if a doctor participates in the actual administration of the drug (on the theory that only a doctor can ensure the dosages are truly medicinal.)
Certainly a doctor who assists a patient in actually using the marijuana can be regulated under federal law, notwithstanding that this federal regulation may displace – and thus make difficult the accomplishment of – California’s objectives. But if the feds can regulate doctors’ administration of marijuana in the face of California’s wishes, why can’t the feds regulate doctors’ recommendation” of marijuana even though California would prefer otherwise?
Whether Judge Kozinski’s argument was convincing or not, we observe today that it is quite similar to, and indeed in some ways the precursor of, the argument embraced by the U.S. Court of Appeals for the First Circuit in its case invalidating the DOMA: that by not recognizing same-sex marriages entered into in Massachusetts, the federal government was burdening and impeding Massachusetts’ decision to recognize same-sex marriages in violation of federalism principles. The federalism argument in the marriage context may be more plausible than in the marijuana context (because marriage has traditionally been much more a function of state than federal law), but the analogy between the two settings remains, and those on both sides of the DOMA debate would profit from reading and assessing Judge Kozinski’s analysis in Conant.
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