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US Courts Clash Over Reparative Therapy Law

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Ruling on consecutive days, federal judges sitting in the same US courthouse in Sacramento reached directly opposite views about how to analyze challenges to a new California law prohibiting licensed health care professionals — though not religious counselors — from providing “sexual orientation change effort” (SOCE) therapy to patients under 18.

On December 3, in Welch v. Brown, Senior District Judge William B. Shubb, appointed to the court by President George H.W. Bush, found the statute was subject to strict judicial scrutiny and issued a preliminary injunction barring its enforcement against two licensed professionals who provide such treatment and one individual who has undergone therapy of this kind and hopes to make it his professional career.

The next day, in Pickup v. Brown, District Judge Kimberly J. Mueller, appointed to the court by President Barack Obama, found the statute was subject to the more customary judicial standard of whether it was rational, denying a preliminary injunction sought by an organization of professionals who provide such treatment as well as parents seeking the therapy for their children.

At the heart of the case is the question of whether the law is a content or viewpoint-based regulation of speech, which is subject to the most searching level of judicial scrutiny, or simply part of the state’s regulation of medical practices, which would be upheld as long as the Legislature had a rational basis for enacting it.

To Shubb, it was clear that critical parts of SOCE therapy involve speech by the licensed professional, even though he and Mueller agreed that the law does not apply to what a licensed professional, short of practicing the treatment, might say to a patient about it.

Mueller said the statute applies to “practices,” not to speech as such, and the fact that speech enters into the practice does not change the underlying analysis required. Courts “have found that the provision of healthcare and other forms of treatment is not expressive conduct,” wrote Mueller, so “plaintiff therapists have not shown they are likely to succeed” in their First Amendment arguments, nor would a claim based on the constitutional rights of minors to receive such treatment likely prevail.

Addressing the autonomy traditionally granted parents in deciding how to raise their children, Mueller noted that the state has a compelling interest in the welfare of minors, finding the SOCE law restrictions comparable to other government medical regulations that have been upheld, such as childhood vaccinations required over the objections of parents.

The Legislature specifically cited reports of ten mental health professional organizations that oppose SOCE, discourage its use, and suggest it could be harmful to minors. Under rational basis review, it is not necessary that the Legislature’s action been judged “correct,” but merely that its members could have rationally believed the statute is justified as a means of preventing harm.

Shubb disagreed with Mueller on just about every point, beginning with his proposition that Supreme Court precedent recognizes First Amendment protection for physician-patient treatment speech and that the Ninth Circuit, whose decisions are binding on California’s federal courts, has “recognized that communication that occurs during psychoanalysis is entitled to First Amendment protection.” Regulations that are content-based and not viewpoint-neutral are subjected to strict judicial scrutiny, which puts the burden on the state to show that any restriction imposed is necessary to achieve a compelling state interest and narrowly focused to limit speech no more than absolutely necessary.

Shubb focused on a case that struck down a federal policy prohibiting physicians from recommending marijuana to patients, and rejected the argument that the SOCE statute regulates only conduct and so does not raise First Amendment concerns. Even though he noted a statement by the Ninth Circuit that “the key component of psychoanalysis is the treatment of emotional suffering and depression, not speech,” he insisted that the “talk therapy” elements of SOCE constitute the “communicat­ion that occurs during psychoanal­ysis” that the Ninth Circuit states in a different opinion is “entitled to First Amendment protection.”

Applying strict scrutiny to the state’s assertion it had narrowly tailored a response to a compelling interest, Shubb said that the studies regarding harm to minors subjected to SOCE quoted in the legislative record refer to “probable” or “possible” harm, but not proven harm. In a strict scrutiny analysis, such evidence is not sufficient to sustain a law against a constitutional challenge.

Shubb's injunction prohibits enforcement of the statute, scheduled to go into effect on January 1, only against the three plaintiffs. Mueller's denial of injunctive relief means the law can go into effect with respect to all other licensed health care professionals in California. Appeals from the judges' rulings are expected in both cases, so the Ninth Circuit will be addressing the issue soon, most likely during 2013. In the meanwhile, other SOCE practitioners may seek injunctive relief regarding their treatments.

Updated 5:17 pm, July 20, 2018
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Reader feedback

Hal W. Lanse, PhD says:
It is ridiculous to call this a freedom of speech issue. This is an issue about power and powerlessness. Teens are not in a position to decide for themselves whether or not they want conversion therapy. The adults in their lives call the shots. The California law only serves to protect minors from a form of "therapy" that has been repudiated by most major psychological organizations. In my own research, I've come across many individuals who were left horribly depressed in the wake of conversion therapy.
Dec. 22, 2012, 6:34 pm

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