Ruling on consecutive days, federal judges sitting on consecutive floors in the U.S. Courthouse in Sacramento, California, reached directly opposite views on how to analyze a California law prohibiting licensed health care professions from providing “sexual orientation change effort” therapy to patients under 18 years of age. In Welch v. Brown, No. CIV 2:12-2484 WBS KJN (E.D.Cal., Dec. 3, 2012), Senior District Judge William B. Shubb, who was appointed to the court by President George H.W. Bush, found that the statute was subject to strict scrutiny and issued a preliminary injunction barring its enforcement against the plaintiffs, two licensed professionals who provide such treatment and one individual who has undergone such treatment and hopes to make it his professional career. The next day, in Pickup v. Brown, No. 2:12-CV-02497-KJM-EFB (E.D.Cal., Dec. 4, 2012), District Judge Kimberly J. Mueller, who was appointed to the court by President Barack Obama, found that the statute was subject to rationality review, and denied a preliminary injunction against its operation that had been sought by a group of plaintiffs including licensed professionals who provide such treatment, an organization of such professionals, and some parents who seek such treatment for their children.
At the heart of the case, of the varying analyses proffered by the two judges in their lengthy written opinions, is the question whether the statute is a content and/or viewpoint based regulation of speech, which would subject it to the highest level of judicial scrutiny, or whether it is a regulation of conduct within the traditional sphere of state regulation of the practice of medicine, which would be upheld as long as the legislature had a rational basis for enacting it.
To Judge Shubb, it was clear that at least part of “sexual orientation change effort” (SOCE) therapy involves speech by the licensed professional, and that the statute seeks to prohibit such speech due to its content and the viewpoint it conveys. To Judge Mueller, what the statute is prohibiting is the conduct of providing a treatment. Both judges agreed, as argued by the state and amici in defense of the statute, that it does not apply to what a licensed professional might say to a patient about SOCE, its desirability, its efficacy, or even whether the patient should consider undergoing such treatment. Furthermore, the statute doesn’t apply to anyone other than a licensed health care provider, so religious counselors who are not licensed by the state could provide such therapy.
But the disagreement came down to interpreting Supreme Court and 9th Circuit precedents where various regulations or prohibitions were applied to communications between licensed health care professionals and patients, in cases involving subjects like abortion and marijuana use. The two judges sharply differed about how such precedents should be construed, and how the conduct covered by this statute should be characterized.
Judge Mueller said that the statute, quite literally, applies to “practices”, not to speech as such, and the fact that speech enters into the practice does not elevate the level of constitutional scrutiny. “What SB 1172 proscribes is actions designed to effect a difference, not recommendations or mere discussions of SOCE.” Although speech may be part of the treatment, “Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct,” wrote Mueller, so “plaintiff therapists have not shown they are likely to succeed in bearing their burden of showing that the First Amendment applies to SOCE treatment; they have not shown that the treatment, the end product of which is a change of behavior, is expressive conduct entitled to First Amendment protection.”
Judge Mueller found this conclusion bolstered by past judicial recognition of “the state’s role in regulating the medical profession,” as a result of which she concluded that “SB 1172’s restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test.” Using a similar analysis, she rejected the content that the minors’ constitutional right to receive information would require heightened or strict scrutiny of the law. She also rejected a vagueness challenge, finding that licensed health care professionals would have no difficulty in figuring out what was prohibited from the language of the statute. (The notion that a court today would find “sexual orientation” to be a vague phrase is risible, actually.)
Addressing parental rights, Judge Mueller acknowledged a body of case law giving parents a large degree of autonomy in deciding how to raise their children, but she noted that the state has a compelling interest in the welfare of minors and state regulations intended to protect minors from harm have been upheld in a wide range of circumstances. The interference with parental discretion by California in this case struck the court as distinguishable from other situations in which courts had struck down state regulations, and comparable to those in which regulations had been upheld, such as requiring vaccinations for children over the objections of their parents.
Having determined that this was a rational basis case, Judge Mueller found that the legislative findings and record were sufficient to predict that the statute would survive judicial review. The legislature specifically cited reports and position statements of ten mental health professional organizations that oppose SOCE, discourage its use, and suggest that it could be harmful to minors who are subjected to it. In a rational basis analysis, it is not necessary that the legislature be “correct” as to the factual conclusions on which it rests legislation; it is enough that a legislator could rationally believe based on the record that the measure is justified as a means of preventing harm.
“SB 1172 is rationally related to this interest [protection of the physical and psychological well-being of minors] because it prohibits a therapeutic practice deemed unproven and potentially harmful to minors by ten professional associations of mental health experts,” she wrote. “Even assuming plaintiffs’ criticisms of the APA report are true, plaintiffs still have not carried their burden of demonstrating that the facts on which the Legislature says SB 1172 is based cannot ‘reasonably be conceived to be true by the governmental decisionmaker.'” Consequently, plaintiffs failed to show the likelihood that their constitutional challenge will be successful, which is a prerequisite to getting its enforcement enjoined while the lawsuit proceeds.
Apart from some commonality as to the likely scope of application of the law, Judge Shubb disagreed with Judge Mueller on just about every point, beginning with the proposition that Supreme Court precedent recognizes First Amendment protection for physician-patient treatment speech and that the 9th Circuit has, according to Shubb, “recognized that communication that occurs during psychoanalysis is entitled to First Amendment protection.”
Once the First Amendment is implicated, courts focus on whether speech is being regulated because of the subject matter it addresses (content) or the position taken with respect to that subject matter (viewpoint). Judge Shubb concluded that HB 1172 focuses on particular speech because of its viewpoint. The statute makes clear that licensed health care professionals can provide treatment to help minors adjust to their sexual orientation, but not to change it, and the statute narrowly focuses on one kind of treatment – SOCE – thus being content-based. Generally, regulations that are content-based and not viewpoint-neutral are subjected to strict scrutiny, putting the burden on the state to show that the regulation is necessary to achieve a compelling state interest, and is narrowly focused to abridge speech no more than is necessary to achieve that interest.
According to Judge Shubb, The Ninth Circuit, whose decisions are binding on the federal district courts in California, “has explained that a content- or viewpoint-based professional regulation is subject to strict scrutiny.” He focused on a case that struck down a federal policy prohibiting physicians from recommending marijuana to patients, analogizing that to mental health professionals using talking therapy to change a patient’s sexual orientation. (Judge Mueller had distinguished this case by analogizing the protected speech about marijuana to a statement by a therapist to a patient that they should seek SOCE or avoid engaging in homosexual activity. Recommending marijuana is not providing treatment, according to Mueller.)
Judge Shubb rejected the argument that HB 1172 regulates only conduct, and thus does not raise First Amendment concerns. Reviewing the legislative findings about the variety of methods used by professionals in providing SOCE, he noted that much of it involved speech by the therapist. While noting a statement by the 9th Circuit that “the key component of psychoanalysis is the treatment of emotional suffering and depression, not speech,” he nonetheless insisted that the “talk therapy” elements of SOCE are “communication that occurs during psychoanalysis” which the 9th Circuit states in a different opinion is “entitled to First Amendment protection.”
Actually, Judges Shubb and Mueller don’t disagree that these cases raise First Amendment issues. The ground of disagreement is how those issues should be analyzed in terms of the level of judicial review, with Judge Shubb insisting that precedent requires applying strict scrutiny while Judge Mueller insisted upon rationality review. Under strict scrutiny, there is a presumption of unconstitutionality, with the burden being on the state to prove a compelling interest that can only be accomplished by the specific regulation. Under rationality review, constitutionality is presumed and the challenger bears the burden of showing that the enactment had no rational justification.
Applying strict scrutiny, Shubb found that the legislative record was unlikely to satisfy that test. In addition to methodological challenges to the various reports and studies relied upon by the legislature, there is the fact, according to Shubb, that studies are lacking firmly demonstrating actual harm to minors who are subjected to SOCE. The studies quoted in the legislative record refer to “probable” or “possible” harm but not proven harm. Thus, one might argue, prohibiting SOCE is not necessary to achieve a compelling interest of protecting minors from harm.
Given the different analyses, the outcome was predictable. Judge Shubb found that enjoining the ongoing professional practice of the two plaintiffs who are licensed professionals imposes a heavy burden on their First Amendment rights, so they are entitled to injunctive relief. As to what burden this would impose on the state, he commented, “California has arguably survived 150 years without this law and it would be a stretch of reason to conclude that it would suffer significant harm to wait a few more months to know whether the law is enforceable as against the three plaintiffs in this case. When balanced against the risk of infringing on plaintiffs’ First Amendment rights, forcing the state to preserve the long-standing status quo so that the case can be resolved on the merits and through the appellate process confirms that any harm the state faces is de minimis.”
Judge Shubb’s injunction prohibits enforcement of the statute (which is scheduled to go into effect on January 1, 2013) only against the three plaintiffs. Mueller’s denial of injunctive relief means that the statute can go into effect with respect to all other licensed health care professionals in California. Appeals from the judges’ rulings are expected in both cases, so the 9th Circuit will be addressing the issue soon, most likely during 2013. Meanwhile, it will be interesting to see whether other practitioners of SOCE will attempt to seek injunctive relief as to their own practices. A new lawsuit might be filed in any federal district court in California. Federal judges are usually assigned cases at random upon the filing of a complaint, so even if cases are filed in Sacramento, there is no guarantee that they would be assigned to Judge Shubb or Judge Mueller, as there are nine different Eastern District judges.