Regulating Physician Speech
57 Pages Posted: 28 Aug 2018 Last revised: 13 Jun 2019
Date Written: August 18, 2018
Lawmakers have increasingly sought to shape communications between physicians and patients by enacting laws that either mandate or prohibit the provision or solicitation of particular information. Some of these laws can be justified as efforts to protect patients by enforcing accepted standards of medical practice, but others are grounded in medical positions that are the subject of substantial dispute among expert physicians or that even flatly contradict an established consensus within the medical community. The Supreme Court has never articulated a clear legal standard applicable to governmental efforts to control physicians’ communications with patients. In the absence of such guidance, lower courts have adopted a hodgepodge of approaches, none of which is entirely satisfactory. The purpose of this Article is to fill this gap by articulating a coherent approach to the judicial review of laws regulating physician-patient communications. This Article rejects the two primary approaches that have been proposed in the literature—applying strict scrutiny to all laws regulating physician-patient communications, on the one hand, or applying varying forms of heightened scrutiny (either strict or intermediate) to limited categories of communications, on the other. Instead, it proposes that courts should apply intermediate scrutiny to all laws interfering with any aspect of physician-patient communications. However, rather than simply looking at any interest asserted by the government and then deciding whether it is “important,” courts applying intermediate scrutiny should ask whether laws interfering with physician speech are reasonably related to the specific governmental interest in upholding the quality of professional practice. The assessment of whether a law is consistent with this standard should generally be decided with reference to the views of the professional community; however, contrary to other commentators, this Article argues that lawmakers should not be required to defer to the professional community’s views in all situations. This Article applies this standard to a variety of laws interfering with physician-patient communications, concluding that some of them can be justified while others cannot.
Keywords: First Amendment, Free Speech, Physicians, Professional Oversight, Health Care Regulation, Informed Consent, Abortion, Intermediate Scrutiny
JEL Classification: K10, K32, I18
Suggested Citation: Suggested Citation