Bloomberg Law, February 2022
A battle over an Arkansas law that bans doctors from referring transgender kids for gender-affirming care is testing the bounds of free speech protections in the doctor’s office. Arkansas says it has the right to regulate doctors’ professional conduct “even if the conduct incidentally involves speech.” But because the law prevents health-care professionals from speaking—and their patients and parents from hearing—about medically accepted treatments, the American Civil Liberties Union Foundation and its Arkansas chapter say it’s unconstitutional.
The fight threatens to limit the autonomy doctors have to determine the best course of care for their patients and is likely to add to a growing discourse among courts over the scope of First Amendment protections when states try to insert themselves in the doctor-patient relationship.
“It’s usually not a problem as long as a state regulation of the professional practice tracks medical insights,” or the professional knowledge, said Claudia Haupt, an associate professor of law and political science at Northeastern University School of Law. “The real problem arises when the state tries to regulate something as a practice of medicine in a way that contradicts medical insights.”