A short excerpt from Justice Jackson's long solo dissent today in Chiles v. Salazar, where she argued that the Colorado ban on conversion therapy for minors was constitutional:
The conclusion that a State can regulate the provision of medical care even if, in so doing, it incidentally restricts the speech of some providers, fully comports with the First Amendment's animating principles. These principles include the well-settled notion that context matters when evaluating First Amendment challenges to state regulation. The context that frames today's debate is the kind of speech that is at issue here—what I am calling (as shorthand) "professional medical speech." …
[A.] [P]rofessional medical speech occurs when a medical professional speaks to a client (1) in the context of the professional-patient relationship; (2) on matters within the provider's professional expertise as defined by the medical community; (3) for the purpose of providing medical care.
First, professional medical speech is speech uttered within the bounds of the professional-patient relationship. That relationship imposes certain duties and restrictions on the medical professional. For example, medical providers are bound by the twin duties of beneficence (the obligation to act for the benefit of the patient) and nonmaleficence (the obligation not to harm the patient).
Second, professional medical speech is speech within the healthcare provider's area of expertise as a member of the medical community. Within the professional-patient relationship, the professional has knowledge that the patient does not have, including knowledge of which medical treatments are appropriate and how to administer them. The patient comes to the provider to access that expertise, which is informed by—and constrained by—what the medical community knows.
Finally, and most importantly, professional medical speech is made for the purpose of providing the patient with medical care. This speech is a tool employed to treat patients. In this sense, professional medical speech facilitates the professional's goal of providing the patient with the treatment, procedure, or healthcare that is within her expertise and that forms the basis of the professional-patient relationship.
