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Conflicting Rulings on CA Reversion Therapy Ban

Federal judges in two separate lawsuits challenging the constitutionality of the recently passed law in California that prohibits the use of “gay reversion therapy” by therapists have reached opposite conclusions, at least preliminarily. The first case is Welch v Brown, where the judge issued a preliminary injunction prohibiting enforcement of the law against the plaintiffs. You can read that ruling here.

As is often true, the outcome of these cases depends on the level of scrutiny the judge applies. Free speech cases are generally considered under strict scrutiny, a high burden on the government that usually means the law will be overturned. But restrictions on speech that are the result of professional and license regulations are usually considered under the rational basis test, a much easier standard that usually means the law will be upheld.

A concurring opinion in Lowe v SEC in 1985 found that “[r]egulations on entry into a profession, as a general matter, are constitutional if they ‘have a rational connection with the applicant’s fitness or capacity to practice’ the profession.” And in Planned Parenthood v Casey, a case involving restrictions on abortion, Justice O’Connor said that “the physician’s First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.”

But Judge William Shubb nonetheless applied strict scrutiny in this case, citing that same concurring opinion in Lowe that said “[a]t some point, a measure is no longer a regulation of a profession but a regulation of speech or of the press; beyond that point, the statute must survive the level of scrutiny demanded by the First Amendment.” He also cited a 9th Circuit Court of Appeals ruling on a similar regulation of psychological care that said ‘“[t]he appropriate level of scrutiny is tied to whether the statute distinguishes between prohibited and permitted speech on the basis of content.'” And the judge thus concludes:

When a mental health provider’s pursuit of SOCE (sexual orientation change efforts) is guided by the provider’s or patient’s views of homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality. Expert
declarations defendants submitted in opposition to plaintiffs’ motion are consistent with this conclusion…

Although it does not appear that the Legislature intended to suppress the spectrum of messages that may be
intertwined with SOCE, such as whether homosexuality is innate or immutable, its enacted finding “that [b]eing lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming” strongly suggests that the Legislature at least sought to suppress the performance of SOCE that contained a message contrary to this finding. That messages about homosexuality can be inextricably intertwined with SOCE renders it likely that, along with SOCE treatment, SB 1172 bans a mental health provider from expressing his or her viewpoints about homosexuality as part of SOCE treatment…this court would be hard-pressed to conclude that SB 1172 is content- and viewpoint-neutral. Accordingly, because it appears that SB 1172 lacks content and viewpoint neutrality, it is likely that it must ultimately be assessed under strict scrutiny.

This is really a very difficult question to resolve and it’s all too easy to answer it in a particular way because we like the outcome of banning reversion therapy. But imagine a similar regulation, where a law is passed that forbids doctors from recommending abortions to women. Would you want such a regulation subject to strict scrutiny or to the rational basis test? The distinction might be found in determining whether such a regulation could pass strict scrutiny or not. Judge Shubb ruled that it could not in this case:

If a statute “imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny–that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest.” …

To overcome strict scrutiny, “[t]he State must specifically identify an ‘actual problem’ in need of solving, and the curtailment of free speech must be actually necessary to the solution.” The state’s burden on strict scrutiny is substantial, especially when contrasted to the lowest level of review, which does “not require that the government’s action actually advance its stated purposes, but merely look[s] to see whether the government could have had a
legitimate reason for acting as it did.” …

In the findings and declarations of SB 1172, the California Legislature found that “California has a compelling
interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” The court does not doubt that the state has a compelling interest in “protecting the physical and
psychological well-being of minors.”

SB 1172 cannot withstand strict scrutiny unless the state demonstrates an “‘actual problem’ in need of solving” and “a direct causal link” between SOCE and harm to minors. At most, however, defendants have shown that SOCE may cause harm to minors…

Additionally, the studies discussed and criticized as incomplete in the 2009 APA Report do not appear to have focused
on harms to minors, and the 2009 APA Report indicates that “[t]here is a lack of published research on SOCE among children.” It is therefore unclear whether the reports of harm referenced in the 2009 APA Report were made exclusively by adults…

In expert declarations defendants and amicus submitted, individuals opined that SOCE causes harm. None of the experts, however, identify or rely on comprehensive studies that adhere to scientific principles or address the inadequacies of the studies discussed in the 2009 APA Report…

Here, evidence that SOCE “may” cause harm to minors based on questionable and scientifically incomplete studies that
may not have included minors is unlikely to satisfy the demands of strict scrutiny.

But in the other case, Pickup v Brown, Judge Kimberly J. Mueller refused to issue a preliminary injunction and concluded that the law must only survive the rational basis test and that the law regulates conduct and practices rather than speech. You can read that full ruling here.

Here, plaintiffs have not demonstrated a likelihood of success on the merits of their claim that SB 1172 will subject mental health professionals to discipline if they merely recommend SOCE to minor patients, or discuss it with them, or even present them with literature about SOCE. This case is thus unlike Conant, where the government was unable “to articulate exactly what speech [was] proscribed, describing it only in terms of speech the patient believes
to be a recommendation of marijuana.” Here, in contrast, the state’s insistence that the statute bars treatment only, and not the mention of SOCE or a referral to a religious counselor or out-of-state practitioner, is consistent with a fair reading of the statute itself.

According to the statute, SOCE is any “practices” aimed at changing a person’s sexual orientation. As the law itself does not define either “practices” or “change,” the court construes the terms in accordance with their “ordinary or natural meaning.” A “practice” is “the application or use of an idea, belief, or method, as opposed to the theory or principles of it,” and the transitive verb “to change” is to “make (a thing) other than it was; to render different.” As defined, then, what SB 1172 proscribes is actions designed to effect a difference, not recommendations or
mere discussions of SOCE. This fact distinguishes SB 1172 from the policy at issue in Conant or the law at issue in Wollschlaeger, as SB 1172 does not on its face penalize a mental health professional’s exercise of judgment in simply informing a minor patient that he or she might benefit from SOCE; it also does not prohibit speech necessary to the therapist’s practice. Moreover, the statute does not preclude a minor’s taking information from a licensed mental
health professional and then locating someone other than a licensed professional to provide SOCE…

Given the weight of the authority on the question and the nature of the record before the court, plaintiff therapists have not shown they are likely to succeed in bearing their burden of showing that the First Amendment applies to SOCE treatment; they have not shown that the treatment, the end product of which is a change of behavior, is expressive conduct entitled to First Amendment protection.

That is not the end of either case, of course. These are just preliminary injunction motions, with the actual case yet to be tried. But it’s all but certain that the final outcome will match these preliminary rulings in both cases and that both cases will be appealed (they’ll probably be appealed immediately, on the basis of the motions for preliminary injunction, without waiting for the full trial). And while I may prefer a particular outcome for policy reasons, the constitutional question really is a close one. It will be interesting to see how the appeals court and perhaps even the Supreme Court rule on these issues.

Comments

  1. Azkyroth, Former Growing Toaster Oven says

    Interesting.

    So would the same judge defend an engineer’s “right” to assure a client that “OF COURSE this bridge won’t fall down!” without doing any calculations as “free speech”?

    What idiocy.

  2. Abdul Alhazred says

    You’d think the question of medical quackery would be somehow separable from the alleged ill effects of having homos around.

    But no-o-o-o-o-o.

    When we show up, their critical faculties shut down about everything.

  3. baal says

    hrm. I’ll have to think more but my first thoughts says the law passes even strict scrutiny (yes I know the number of laws that do is vanishingly small).

    Let’s give the reversion therapy people the benefit of the doubt and call them either medical procedure or a publication (yes I know that’s weird but I’m framing a range). In either case, your medical procedure or your published views lead to 1) more deaths from suicide vs untreated people and 2) more cases of serious depression vs ‘non-readers?’ being sent to licensed board certified psychologists. Under either view, we do regulate such activities.

    I distinguish the abortion case as concepti don’t have the same legal rights as living and breathing adults.

  4. says

    But imagine a similar regulation, where a law is passed that forbids doctors from recommending abortions to women.

    I don’t think that’s a fair comparison: abortion is a medical procedure about which people have opinions, but which can be justified, or opposed, based on objective medical facts such as the woman’s health needs, likelihood of harm, etc. Reversion therapy is a psychological procedure, and is heavily based on opinions that are not supported by objective facts. Furthermore, there are objective facts pertaining to the patients’ welfare that contradict many of the claims on which reversion therapy is based.

    Would you want such a regulation [against recommending abortion] subject to strict scrutiny or to the rational basis test?

    Such a reg would fail EITHER test: abortion can be done safely, it has real and obvious benefits, it’s not a useless or bogus procedure like homeopathy, there are cases in which it is actually necessary, and it is a doctor’s duty to inform a client of all reasonable options he/she has. Therefore a law restricting a doctor’s ability to communicate about one safe and reasonable option with a client has no rational basis.

  5. A. Noyd says

    Except abortions actually work to remove fetuses, whereas reversion therapy does not work to remove gayness.

  6. says

    Generally, states can make laws regulating the practice of professions such as law, medicine, construction, etc. The CA law looks (to me, FWIW) like a reasonable response to a praceice that very clearly appears to be both fraudulent (as in, based on disputed or false information), and harmful to patients. So this law has just as much rational basis as, say, a law against using chelation to treat autism; or a law against prescribing hallucinogens to treat depression.

  7. Abby Normal says

    I’m conflicted as well. Regulating the practice wouldn’t bother me. Limiting the claims practitioners can make and requiring them to provide a warning of the risks would be good. But prohibiting the practice entirely is horse of a different color. As enshrined in the Patient Bill Of Rights, people have a right to guide their own medical care, even if their choices produce inferior results. People can choose to smoke cigarettes or eat fatty foods. They can subject themselves to leaching to remove bad blood or candling to remove ear wax. Women can choose to use an IUD or take hormonal birth control, even though either one carries significant health risks, including death.

    Moreover, we see time and again that attempting to ban a substance or medical practice does little to dissuade people from seeking it. We saw it with back ally abortion before Roe v Wade and still see it areas where the barriers are too high. We see it with the prohibition on recreational drugs. I see these anti-gay therapies in a similar light. I believe the main effect of a total ban would be to drive the practice further underground, doing more harm than good. So from both a philosophical and practical perspective, I’m really uncomfortable with this ban.

    That said, I’m saddened greatly that anyone would choose to put themselves through such a harmful process. I recognize that many of the arguments in favor of the ban have a lot of substance. I don’t think I’d be making these same arguments if it was a thalidomide ban we were discussing. So while I’m reluctantly on the anti-ban side of the fence, I’m keeping limber in case I find good reason to hop it.

  8. thascius says

    The ban only applies to children and adolescents. Adults in California are still free to engage in this quackery if they like. This is the mental health equivalent of snake oil-a cure that doesn’t work for a condition that is not a disease. Every mainstream medical and mental health organization that has taken a position on reparative therapy has condemned. I think it is absolutely appropriate to ban a treatment for kids that has never been demonstrated to do any good and may well do harm.

  9. thalwen says

    I am conflicted in this case. On the one hand, yes, this ban is a good thing if it keeps homophobic parents from forcing a harmful and ineffective therapy on their kids. On the other hand, if those parents can’t do reversion therapy, they’ll likely find some other way to torture the gay out.
    And the abortion issue – there are states that already force doctors to lie to women seeking an abortion about false links to mental illness or breast cancer. So it is a real concern.

  10. Abby Normal says

    Thascius, does that hold true even if the ban doesn’t significantly reduce the number of children subjected to harm, but rather removes what little government oversight exists? I’m thinking about the problems we see in states that make it nearly impossible for a minor to have an abortion, more harmful alternatives arise to meet the demand.

  11. Ichthyic says

    I’m thinking about the problems we see in states that make it nearly impossible for a minor to have an abortion, more harmful alternatives arise to meet the demand.

    but as others mentioned. Abortions, whether medical or not, at least have an end goal that has evidence in support. typically it works, risky or no.

    this is why it is a bad comparison to reversion therapy.

    a better comparison would be to laws prohibiting similar types of “snake oil” sales historically.

    there are many.

  12. Ichthyic says

    hell, it’s a blatant lie to even CALL it “reversion” therapy.

    as if there was a state to revert to via sexual orientation.

    sorry, I see no evidence that a free speech issue is involved here, even within Ed’s argument.

  13. says

    I also think that’s a bad analogy. This bill doesn’t so much ban reversion therapy as ban it from being presented as medical. It’s more like banning doctors from prescribing ear candling.

  14. Nomad says

    I’m kind of baffled here. Ed seems to find this a stimulating bit of constitutional law to mull over. But the immediate result of this kind of thing being affirmed as being a matter of free speech would seem to be all consumer protection law being rendered null and void.

    Presumably I cannot, today, sell my own make of automobile and claim that it gets 50 miles per gallon in city driving when the reality is that the engine won’t actually propel the car at all, and instead may possibly explode and kill the driver.

    So why should I be able to tell someone that I perform therapy that can convert them from being gay to being straight, when available research says it can do no such thing and will instead risk inflicting harm on them?

    I know the medical realm in the US has gotten a bit of a black eye of late, with companies selling water and sugar pills (in other words, homeopathy) in stores and claiming specific pharmacological effects without having to prove any kind of efficacy at all. Now drug reps can push doctors to use their products in ways not approved by the FDA, in ways that the drug companies themselves can’t even advertise their product for. So clearly this line of thinking is not unique.

    So I suppose reversion therapists being able to sell treatments that don’t work and risk harming the patients would be nothing new at this point, but aside from the argument of “but big pharma and big supplement get to do it, so why shouldn’t I?” I fail to see how this can possibly be any more a free speech issue than any other manner of deceptive advertising that we still have regulations against.

  15. says

    But the immediate result of this kind of thing being affirmed as being a matter of free speech would seem to be all consumer protection law being rendered null and void.

    Not to mention any attempt, internal or external, to regulate professional conduct or standards within any profession. Or at least any profession where practitioners deal with anything other than provable objective facts 24/7. Which, to be sure, is something the Republicans have been wanting to do for as long as I can remember. I’m sure the libertarians are drooling like mad over this prospect, right along with the collectivist religious bigots they pretend not to agree with.

  16. says

    Also, Nomad, remember Ernest Levefer, one of Reagan’s less successful appointees? His big schtick was pushing a new concept of “corporate free speech,” which allegedly trumped all attempts to restrict deceptive or manipulative advertizing. He was working for Nestle, which wanted to sell infant formula to people in Africa who couldn’t get reliable access to clean water — and get them to stop breastfeeding and pay for their less-beneficial formula instead. IIRC their ads pandered to women’s fears of not being as attractive to their husbands when their babies took some of the load off their breasts.

    Reagan had to drop that scumbag from his Cabinet list, but now it looks like that idea is making a bit of a comeback.

  17. thascius says

    Abby (at 10) With this particular treatment what is the point of government oversight? Normally in medicine it’s to protect people from unsafe & ineffective treatment. This treatment is definitely ineffective and may well be unsafe. Every mainstream medical organization that has looked at it has refused to endorse it. As a society we generally agree to let adults make bad choices for themselves, but we also generally draw the line at letting kids do the same thing.

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