Physicians and Free Speech: Case In Point

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Original story posted on: July 25, 2018

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The Court ruled that California may not compel the clinics with religious concerns to promote or advertise abortion options.

When can the government require speech? While many people think of the recent Supreme Court decision involving family clinics in California as an abortion case, the analysis of the case centers on free speech.

The Court concluded that the state of California was not allowed to require certain crisis pregnancy centers to post a notice describing services available to pregnant women, nor could it require unlicensed clinics to warn women of the center’s unlicensed status.

This raises a question: Will the principles articulated in this case be applied more broadly to other disclosure requirements imposed on healthcare professionals? I haven’t seen any articles raising this question, but this is a topic that merits attention.

The healthcare industry is replete with situations where professionals are required to make statements to patients. For example, under Stark, if a physician group wants to qualify for the in-office ancillary exception, it must provide notice to patients who receive advanced imaging like MRI’s, CT and PET, notifying them of other suppliers that provide the services.

In most states, when a physician has a financial interest in certain ancillary services ranging from surgery centers to durable medical equipment (DME) supplies, the physician is required to disclose the financial relationship to the patient.

At this point, it is not entirely clear whether this opinion will transfer to other disclosure requirements. The opinion contains some reasoning that seems quite weak.

The decision is premised on the conclusion that professional speech is not a separate category of speech and that professionals are entitled to constitutional protection of their speech, but it also notes that professionals can be made to disclose “purely factual and uncontroversial information.” The portion of the analysis that seems most suspect is the assertion that if there is a way that the state could communicate information to the patients, it is improper for the state to require professionals to communicate it.

It is difficult to envision a situation where the only way that information could be communicated is via the professional. If the availability of other means of communication is truly the test, this decision would seem to prohibit nearly all state requirements of disclosure. After all, the state could always advertise, drop leaflets, or rent the Goodyear blimp as a means to communicate. Yet the decision seems to say that the availability of alternate communication means that the state should not force professionals to speak.

Justice Clarence Thomas also addressed another fact: The disclosure requirements only applied to a subset of clinics rather than applying more broadly. That caused the Court to conclude that the government was supporting a particular position. The court often believes that government-imposed speech should be “viewpoint neutral.”

If one were to focus on that portion of the Court’s analysis, there would be less reason to think that the opinion would apply to purely economic disclosures. However, the discussion about the fact that state could have accomplished its goal through other means of communication gives hope to a physician who wishes to challenge notices that the Court may be receptive to the argument.

 

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Listen to David Glaser every Monday on Monitor Mondays, 10-10:30 a.m. EDT.

 

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David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and a member of the RACmonitor editorial board.

 

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