Can the government require doctors to tell patients about alternative approaches to treating a medical condition? Can it insist that people unlicensed to offer medical care disclose that they lack licenses? According to the conservatives on the Supreme Court, if these people work in anti-abortion crisis-pregnancy centers, the government’s interest in disclosure does not outweigh their First Amendment rights to say what they want about medicine or their qualifications. This is a dangerous precedent.
The court repudiated two disclosure requirements that California placed on crisis-pregnancy centers, which are anti-abortion facilities that offer pregnancy services. Licensed clinics were required to post a notice informing customers that the state offers discounted or free pregnancy services, including abortion. Unlicensed facilities had to disclose that they lacked licenses to administer medicine.
On abortion, perhaps the hottest-button issue, what would seem like routine disclosure requirements suddenly take on enhanced meaning. Those working in unlicensed facilities have some reason to believe they are being singled out for their views. And it is understandable why the anti-abortion staff at a crisis-pregnancy center would feel affronted posting a sign advertising the availability of abortion services elsewhere. But particularly in the case of professionals working in licensed medical facilities, they should be prepared to be subject to the wide-ranging government regulation that states apply in the medical field.
There is danger in this precedent. The majority, Justice Stephen Breyer wrote in his dissent, “invites courts around the nation to apply an unpredictable First Amendment to ordinary social and economic regulation, striking down disclosure laws that judges may disfavor, while upholding others.” The justices might soon find themselves fending off a wave of new challenges – to, say, required disclosure of information on alternative cancer treatments or on vaccines, among many other possibilities – that would have been considered frivolous just days ago.
Send questions/comments to the editors.
