Supreme Court holds that bans on “conversion therapy” are presumptively unconstitutional

Dismayingly, the decision was 8-1, although I guess it’s possible that Kagan and Sotomayor joining the majority prevented the majority from just striking down the law rather than telling the lower court to apply strict scrutiny:

The Supreme Court on Tuesday overwhelmingly sided with a Christian therapist, rejecting a Colorado law that prohibited mental health professionals from trying to change the sexual orientation or gender identity of L.G.B.T.Q. minors.

The court’s decision has implications for more than 20 other states that have similar laws barring so-called conversion therapy, and is a major win for conservatives.

Critics and major medical organizations say such therapy is ineffective and potentially dangerous for young people. But in its 8-to-1 decision, the court said the law, as applied to talk therapy, represented an “egregious assault” on free speech and the First Amendment.

“Colorado may regard its policy as essential to public health and safety,” Justice Neil M. Gorsuch wrote for justices from across the ideological spectrum. “But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”

Two of the court’s liberal justices — Elena Kagan and Sonia Sotomayor — sided with the majority. Only Justice Ketanji Brown Jackson dissented, reading a lengthy summary of her opposition from the bench.

Justice Jackson warned of the broader implications for medical care that she said could be “catastrophic” if states cannot regulate some kinds of speech by licensed professionals.

“The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel,” she wrote, criticizing her colleagues for having made a decision that she said “risks grave harm to Americans’ health and well-being.”

In recent years, the Supreme Court has issued a series of decisions in favor of religious people, notably conservative Christians, though it has generally been divided on those issues along ideological lines.

The critical context here is that the Colorado law applies solely to licensed medical professionals in the context of a medical practice. As Jackson says, because of this the Court’s holding “is unprincipled and unworkable,
and will eventually prove untenable for those who rely upon the long-recognized responsibility of States to regulate the medical profession for the protection of public health.” There are countless regulations of medical practice that are not “viewpoint neutral” as the Court now apparently defines it (although this is likely to prove a bespoke carveout for laws protecting LGBTQ+ people.)

As Mark Joseph Stern points out, the contrast with how the Court treats abortion is impossible to ignore:

Jackson’s dissent is far clearer. Colorado’s law, she explained, “restricts treatment-related speech uttered by medical professionals only as part of a larger regulatory scheme aimed at ensuring that providers tender high-quality medical care to patients.” In other words, Chiles may be engaged in “expression,” but that expression is a medical treatment that Colorado has every right to regulate. (Colorado imposes no regulations on this speech outside of formal medical practice.) The state is not targeting “speech as speech,” but a range of services that include verbal communication. And “why wouldn’t such speech-based medical treatments be subject to reasonable state regulation like any other kind of medical care?”

The justice did not invent this concept; it is rooted in the Supreme Court’s own decision in Planned Parenthood v. Casey, in a part of the opinion that was not overturned by Dobbs. There, the court upheld a law that ordered doctors to provide anti-abortion propaganda to a patient before terminating her pregnancy. It found that this requirement passed First Amendment muster because it regulated speech “only as part of the practice of medicine.” In other words, it was one part of a broader abortion regime, and should not be plucked out and assessed as a standalone regulation of expression. The same is true here, Jackson wrote: Colorado outlawed all kinds of “conversion therapies,” ranging from physical interventions (like electroshock) and “counseling conversions.” Under Casey, the state had every right to regulate therapists’ speech as one component of a larger law regulating the medical profession.

[…]

Then there are the larger implications of the court’s decision for medical licensure and malpractice laws. States, Jackson noted, have long assumed the power to punish medical professionals for what they say in addition to what they do. They have closely regulated the provision of medical advice, for instance, and authorized malpractice suits when that advice leads to harm. If a doctor tells a patient not to get a cast because he believes God heals broken bones by himself, can he wield the First Amendment to defeat the patient’s lawsuit? Does a state “enforce orthodoxy” when it insists upon swift treatment for bone fractures? Could a patient sue a doctor who counsels against the measles vaccine in the midst of an outbreak? Or would such a suit punish the doctor for their “expression” by taking sides in an active debate?

And even more problematically, this right is strictly a one-way ratchet, as the same Court has also held that parents do not have the right to seek gender-affirming care for trans children:

Yet anti-LGBTQ+ therapists now enjoy a First Amendment right that is denied to abortion providers. But as Jackson pointed out, the inconsistency runs deeper. After Chiles, parents who seek to “convert” their transgender children have a constitutional right to do so. But thanks to last year’s decision in Skrmetti, parents who seek to affirm their transgender children with medication have no such right. States can ban gender-affirming medication but evidently cannot ban anti-transgender talk therapy. And the majority does not explain why anti-LGBTQ+ speech receives heightened protections when other viewpoints do not. Surely, Jackson wrote, a state can direct doctors to discourage, and not encourage, smoking cigarettes. It can prohibit doctors “from telling an anorexic patient to eat less” while allowing them to recommend eating more. It can stop doctors from encouraging patients to end their lives. These laws, too, censor speech on the basis of the state’s preferred viewpoint—in Gorsuch’s words, they “enforce orthodoxy.” Why is it, then, that nobody seriously argues that they’d violate the First Amendment, too?

Among other things, this decision is another example of the increasing hostility of Republican elites toward the equality of LGBTQ+ people, which will have escalating bad ramifications.