Setting a dangerous precedent

Published on Sunday, 1 July 2018 20:26
Written by The Washington Post

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 antiabortion 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 antiabortion 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 antiabortion 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, and that regulation almost always affects speech in a substantial way.

In a sensible dissent, Justice Stephen Breyer listed just a few examples: a North Carolina law requiring hospitals to tell parents about the availability of the pertussis vaccine; a California law requiring doctors to provide breast cancer patients “a written summary of alternative efficacious methods of treatment” and to post notice that physicians must provide the information; and, giving a taste of the many disclosure requirements beyond the medical profession, a New York City ordinance requiring notices near elevators showing the location of stairs. Moreover, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the court upheld an antiabortion Pennsylvania law requiring clinics to tell women seeking to terminate their pregnancies about “the nature of the procedure, the health risks of the abortion and childbirth, and the ‘probable gestational age of the unborn child’ “ and offer them state written materials.

The court gamely - but not convincingly - tried to draw hair-splitting distinctions between these examples and the California laws it repudiated.

Breyer exposed the majority’s underlying hypocrisy: “If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?” he asked. “As the question suggests, there is no convincing reason to distinguish between information about adoption and information about abortion in this context.”

There is danger in this precedent. The majority, Breyer wrote, “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, all without grounding their decisions in reasoned principle.”

The justices might soon find themselves fending off a wave of new court challenges - to, say, required disclosure of information on alternative breast cancer treatments or on vaccines, among many other possibilities - that would have been considered frivolous just a few days ago.

Posted in New Britain Herald, Editorials on Sunday, 1 July 2018 20:26. Updated: Sunday, 1 July 2018 20:28.