I’m not a lawyer so I can’t speak to Justice Jackson’s legal knowledge. But I am a person who loves to ask questions and I think she is absolutely right in her dissent in Chiles v. Salazar:
Somehow, Justices from eras past have always understood that (as I stated at the outset) “there is no right to practice medicine which is not subordinate to the police power of the States.”
They correctly applied that simple but powerful understanding of our Constitution across the board—to all healthcare professionals, including those with practices that happen to involve treatment-related speech. We do harm to both the Nation’s medical system and our First Amendment jurisprudence by ignoring that wisdom today.
The First Amendment requires heightened scrutiny when States regulate “speech as speech” but not when speech is restricted “incidentally.”
The latter occurs where, as here, a State seeks to prohibit healthcare professionals from providing a dangerous medical treatment in all of its forms, including the speech-related variety.
States have traditionally regulated the provision of medical care through licensing schemes and malpractice regimes without constitutional incident. And no core principle of our First Amendment jurisprudence leads inexorably to the conclusion that it violates the Constitution for a State to prevent its licensed talk therapists from using speech to harm the minors in their care.
Holding otherwise, as the majority does now, flouts centuries of state-standardized regulation of medical care and is, ultimately, nonsensical.
The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel. Accordingly, I cannot agree with the majority’s analysis or its conclusions in this case.
She includes examples:
When a State establishes a standard of care, or punishes a doctor for providing care outside of that standard, it necessarily limits what medical professionals can say and do on the basis of viewpoint.
A State can permissibly prohibit the administration of specific drugs for particular medical uses but not for others.
So, too, may it prohibit a doctor from encouraging a patient to commit suicide, or a dietician from telling an anorexic patient to eat less. Likewise, no one would object if a State required its doctors to discourage, but not encourage, smoking tobacco.
This resonates with me because I think this framing is useful for other attempts by the far right to encroach on our personal freedoms via the state’s unconstitutional usurpation of the medical community, namely abortion. There is no reason for the state to be involved in abortion—a medical procedure—beyond the already-established regulatory mechanisms in place for medicine: licensure requirements, cleanliness standards, etc.
The same should hold true for talk therapy for LGBTQ+ people. If a medical professional cannot tell you to harm yourself, then that should apply to talk therapy too, regardless of why the person is there.
And she also makes a great point about the First Amendment issue the rest of the court wanted to push:
As applied to Chiles, the MCTL treats the talk-therapy form of conversion therapy as a prohibited medical treatment. But Chiles is free to express her opinion about the efficacy of conversion therapy or her disagreement with Colorado’s conclusion that such therapy is harmful to minors. Colorado’s law does not target or prohibit the expression of such views by anyone in any form—including by licensed healthcare providers in discussions with patients and their families. All that Colorado’s law proscribes is the provision of such therapy to minors.
This means that, while Chiles can freely promote conversion therapy and vociferously decry the State’s prohibition, she cannot practice that therapy without being subject to professional discipline under Colorado law.
I heartily approve of Justice Jackson’s using her dissent as a way to inform the public about the constitutional issues under discussion and writing an accessible explanation that serves the public. In doing so she carries forward the legacy of another pioneering Black legal scholar, Lani Guinier.
If Kantor is right that all three of the liberal justices view President Donald Trump “as a threat to the constitutional order,” then it’s important to understand Jackson’s approach to this moment as larger than a tactical disagreement. It reflects a “demosprudential” understanding of dissent – an idea first articulated by the late luminary Harvard Law professor and civil rights lawyer Lani Guinier, who argued that judicial dissents can serve as tools of democratic engagement (building on the concept of “demosprudence” that she developed with Yale Law professor Gerald Torres). Guinier contended that dissents are not merely responses to majority opinions; they can also be public-facing interventions. Dissents have the potential to educate, mobilize, and give language to the public about what the court is doing and what is at stake. On this view, the job of a dissenter – particularly in moments of democratic crisis – is not just to persuade colleagues, but to speak to the country.
More of this, please.
I’ll leave you with this: