By Lynette Martins and Scott Schweikart
Laws regulating physicians’ professional speech – i.e., what they can and cannot discuss in the exam room with patients — have made a resurgence in the post-Dobbs era. These so-called “gag laws” have primarily targeted physicians’ speech around firearms, reproductive rights (predominantly abortion), and, less frequently, conversion therapy.
In the abortion context, these restrictive laws impact not only patient access to critical medical services, but also the fundamental underpinnings of the physician-patient relationship.
It is important to note that physicians do not have a specific right to free speech as a professional group. Yet, while there is no constitutionally articulated right, the contours of professional speech have been carved out – in often limiting ways – by the prevailing jurisprudence. Examining the prevailing jurisprudence reveals two broad categories that apply to the state interest in regulating clinician speech: False Speech and Professional Speech. While there are limitations on falsities, such as a physician misinforming a patient, the Supreme Court has stated that there must be some additive factor, such as malice or perjury, to validate government sanctions on professional speech. And, while the Supreme Court has not yet articulated a clear professional speech doctrine, physicians do not have an unfettered ability to practice medicine without limitation on their speech. Claudia Haupt has indicated that the courts have molded professional speech – a category of speech that Haupt describes as “insights through the professional to the client, within a professional-client relationship” — by either compelling or prohibiting a clinician’s speech, depending on the nature of the communication.
A prime example is abortion gag laws, which present the most extensive abridgment of physicians’ speech. In 2019, under the Trump administration, the Department of Health and Human Services issued a Final Rule which, “impose[d] a gag on the medical profession that would have practitioners in the Title X program direct pregnant women toward continuing a pregnancy to term— regardless of what a patient actually wants (the ‘Gag Requirement’).”
Some abortion gag laws have not only banned physicians from recommending abortion as a part of their treatment plan or from referring patients to a clinic that provides the service, but also have mandated that physicians dispense to patients questionable and misleading information regarding reproductive health. Laws requiring mandatory ultrasounds before access to abortions demonstrate how the law can compel physicians to dispense information, ostensibly to protect pregnant persons. These particular regulations are termed ‘speech-and-display’ laws, which generally fall into the category of informed consent laws. The rationale for these laws relies on Casey, with the premise that providing truthful and non-misleading information will allow the pregnant person to make a fully informed decision. However, many of these laws force physicians to relay misleading information. For example, mandating that physicians disclose to pregnant persons that those who undergo an abortion have a higher risk of suicide was unsubstantiated by robust studies and, as such, “violate[d] doctor’s right to be free from compelled speech that is untruthful, misleading or irrelevant” in Planned Parenthood Minn. ND, SD v Rounds This case ultimately was overturned by an en banc decision in the 8th Circuit, but scholars argue that the initial district court ruling struck the right balance in constraining physician speech within reasonable limits.
In a post-Dobbs frontier, abortion gag laws are increasingly dangerous. With no federal protection for access to abortion services and abortion rights hinging on the states, access to abortion is perilous, and the doctor-patient relationship is, in many states, already under siege. The government prohibiting or compelling a physician from providing professionally and ethically obligated medical care is unreasonable and detrimental to the patient’s health. Indeed, a tenet of medical care, and one echoed by medical ethicists, is providing care in the patient’s best interest.
Moreover, this political theater further compromises the often tenuous trust between physicians and patients and the health care system. Also complicated by these restrictions is the future of the health care workforce and the availability of necessary care. For example, regarding aspiring physicians interested in Obstetrics and Gynecology residencies, there needs to be more clarity about which institutions will or will not provide evidence-based training in the field they wish to pursue.
An exodus of Obstetrics and Gynecology applicants will further limit the provision of these essential health care services, particularly in states where access to reproductive care is limited and maternal mortality rates are already high.
Physicians will need to coalesce around this issue, as the threat to physician speech- and ultimately, evidence-based patient care – is ongoing and spans multiple practice areas, e.g., obstetrics and gynecology, psychiatry, and pediatrics. Already, physicians and health care practitioners, individually and as a coalition through professional societies, have been staunch opponents of restrictive speech laws, advocating instead for the ability to speak freely with their patients without governmental interference.
With the courts chipping away at access and state legislatures further constraining the provision of abortion care, prospects look increasingly grim. However, civic engagement remains a critical counterpoint. By engaging with allies and advocating for patient access to essential health care, physicians can work to protect appropriate and ethical care for their patients and regain control over the sanctity of the patient-physician relationship.
Lynette B. Martins, LL.B. (Hons.), PGDip, MBE, LL.M. is the Senior Research Fellow at the Solomon Center for Health Law and Policy and Associate Research Scholar in Health Law at Yale Law School.
Scott J. Schweikart, JD, MBE, is a Senior Policy Analyst at the American Medical Association and the Legal Editor of the AMA Journal of Ethics. The views expressed are that of the authors alone and do not represent that of the American Medical Association.
