Nancy C. Marcus (California Western School of Law) has posted Abortion and LGBTQ Healthcare Protections from Censorship and Compelled Speech After Chiles v. Salazar on SSRN. Here is the abstract:
The landscape of First Amendment professional speech protections has followed a winding and at times rocky path, culminating in the Supreme Court’s Chiles v. Salazar decision affirming strong protections for the speech of medical professionals. In the Supreme Court’s jurisprudence leading up to and including Chiles, First Amendment professional speech protections have not always appeared to be equitably distributed, with one side of Justice Scalia’s “kulturkampf” having a more successful track record than the other in First Amendment challenges. For example, in a censorship context, the therapist in Chiles successfully invoked the First Amendment as a shield against a conversion therapy ban designed to protect LGBTQ people from dangerous medical practices, and in the Court’s previous 303 Creative v. Elenis decision, a wedding website designer similarly used the First Amendment as a shield against the enforcement of a public accommodations law designed to prevent anti-LGBTQ and other forms of discrimination. In contrast, there is a comparable dearth of cases extending professional speech protections to abortion and LGBTQ-affirming healthcare providers. After Chiles, however, the time may be ripe to flip the script, beginning with equitable applications of First Amendment professional speech protections to those who provide LGBTQ-affirming care, and also to abortion providers. In the context of abortion, even with Dobbs v. Jackson Women’s Health Organization having struck down the past “undue burden” standard for evaluating abortion regulations, abortion laws such as informed consent mandates that more than incidentally affect medical professionals’ speech are still subject to First Amendment scrutiny. From undue to un-incidental burdens, from competing rights in public accommodations contexts to strong medical professional speech protections, the new constitutional landscape invites the re-examination of First Amendment doctrine in a new light, with an eye toward ensuring equitable constitutional protections rather than elevating coerced ideology-driven medical misinformation over the wellbeing and rights of physicians and patients.
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