By Claudia E. Haupt
The COVID-19 pandemic has highlighted the tradeoffs at stake for Black, Indigenous, and people of color (BIPOC) seeking reliable health advice.
While there are legal safeguards to ensure reliable health advice within the confines of the doctor-patient relationship, outside of that relationship, the First Amendment protects bad advice just as much as good advice.
Courts continue to interpret the First Amendment in an expanding, deregulatory manner and the health context is no exception. For example, one novel judicial interpretation challenges previously accepted applications of the police power in furthering public health. In a forthcoming article, “Public Health Originalism and the First Amendment,” my colleague Wendy Parmet and I explore some of the dangers associated with this deregulatory approach.
Overall, the beneficiaries of these recent developments tend to be powerful speakers. The costs have largely fallen on women, as seen for example in NIFLA v. Becerra, and those who lack access to reliable medical advice, who are disproportionately BIPOC. Current First Amendment doctrine thus has the dangerous potential to further exacerbate existing racial disparities in health.
Embedded in the doctrinal developments are normative tradeoffs between protecting speech and ensuring access to expert medical and public health advice. Within the doctor-patient relationship, professional speech, that is, speech between a provider and a patient for the purpose of giving advice, must be accurate, comprehensive, and reflect the insights of the profession. Ordinary free speech doctrines such as content neutrality do not apply. Within the relationship, fiduciary duties attach and malpractice liability sanctions bad advice.
Outside of the doctor-patient relationship, by contrast, the First Amendment is highly protective of speech and prohibits content- and viewpoint restrictions. There, the interest in free speech outweighs the interest in providing reliable health advice; misinformation can proliferate and is checked only by counterspeech.
This privileged position of the doctor-patient relationship vis-à-vis public discourse assumes access to competent and reliable health advice. But where access is unavailable, or where the advice rendered is inadequate, the costs of this First Amendment tradeoff are high. They are even higher in a pandemic when good health advice is vital. Despite some improved health care access as a result of the Affordable Care Act, BIPOC continue to fare worse on the metrics of coverage, access to care, and use of care. BIPOC are more likely uninsured, more likely to be without needed care or delay care due to cost, and more likely to lack a usual source of care.
The social reality of significantly lopsided access to advice illustrates that the normative calculus is in fact problematic in ordinary times. It is severely strained during a public health crisis. Those without access are unable to receive potentially life-saving advice in a speech environment saturated with bad advice. Political influence, moreover, has resulted in the dissemination of misleading advice from what otherwise would have been trusted sources.
In the United States, BIPOC have been especially hard-hit by the pandemic. As Colleen Campbell notes, “African Americans (and Latinx and Indigenous groups) are indeed more at risk for COVID-19 infection. . . . It is because they lack access to testing, adequate health care, and providers who recognize their full humanity.” This lack of access highlights the mismatch between doctrine and the normative tradeoffs for BIPOC.
It is important to remember that even if access is available, the advice rendered may be not be adequate or responsive to health needs. As Craig Konnoth notes in the introduction to this symposium, “Within medical institutions, BIPOC receive worse treatment, experience worse outcomes, and die at higher rates than their white counterparts. Such discrimination is embedded within medical institutions in deep and intersectional ways.”
When the law demands a tradeoff, we must ask who bears the costs; behind every such tradeoff there are individuals. In this case, the individuals burdened are those who do not have access to reliable health advice.
First Amendment doctrine that privileges the doctor-patient relationship, in other words, imposes the costs on BIPOC. The normative balance could be restored through fundamental changes in the doctrinal approach to speech in general, changes to the doctrinal approach in extraordinary times of crisis, or by increasing the availability of reliable sources of information by expanding access to the doctor-patient relationship.
But where access to health advice is hard to come by, BIPOC individuals and communities will suffer the gravest consequences and First Amendment doctrine will continue to exacerbate existing health disparities.
Claudia E. Haupt is an Associate Professor of Law and Political Science at Northeastern University.