The U.S. Supreme Court Will Hear Case on Conversion Therapy: What It Means.

According to Vox: Do therapists have protection under the First Amendment during art therapy sessions with their clients? And are these protections strong enough to prevent the state from regulating art therapy so that it does not harm patients or stray from professional standards of care?

This is the main question of the case Chiles v. Salazar, which will be argued before the Supreme Court on October 7. Despite the notion that incompetent or even malicious therapists could completely evade regulation seeming extreme, there is a real likelihood that the court will support this position.

This case also touches on one of the largest cultural conflicts in U.S. politics: whether the rights of conservative Christians outweigh the rights and interests of LGBTQ Americans. The Republican majority of this court regularly issues rulings that protect religious rights in such conflicts.

Chiles is about 'conversion therapy'—the practice where therapists attempt to change their clients' sexual orientation or gender identity. According to a federal appellate court ruling, "every major medical, psychiatric, psychological and professional mental health organization opposes the use of conversion therapy." The American Psychological Association, for example, emphasizes that conversion therapy "puts people at significant risk of harm" and is not effective in changing a patient's sexual orientation or gender identity.

Approximately half of U.S. states ban 'conversion therapy' for patients under 18, including Colorado, whose law is the subject of discussion in the case Chiles. This law prohibits licensed therapists from practicing "any methods or treatments that attempt to change a person’s sexual orientation or gender identity." It also provides an exception for counselors "experienced in the practice of religious ministry."

The plaintiff in Chiles, a therapist represented by the Alliance Defending Freedom (ADF) law firm, which often defends conservative views, asserts that the First Amendment guarantees freedom of speech. According to him, the Colorado law restricts what therapists can say to their patients, making it unconstitutional.

However, historically states have had the right to regulate the professional advice that licensed specialists provide to their patients. An attorney counseling a client on bank robbery can be disbarred. A doctor advising a patient to inject household bleach to treat Covid-19 can be charged with murder if the patient follows their advice.

Undoubtedly, the First Amendment provides some protection to therapists. The state cannot, for example, require licensed therapists to instruct their patients to vote for a specific governor. But the amendment has historically not been seen as a barrier to the state punishing professionals who violate the standards of their profession.

When conservative Christians take their case to the Supreme Court, Republican judges rarely consider whether their decision will harm important institutions. For example, last term these judges ruled that public schools must inform parents about lessons that might provoke religious objections. Justice Sonia Sotomayor noted that such a ruling could provoke "chaos" and "impossible administrative burdens" for teachers.

Previously, parents have sued schools for objecting to teachings on topics such as divorce, interfaith couples, "inadequate clothing," evolution, pacifism, magic, women's achievements outside the home, and "false notions of death."

Potential Consequences for Professional Regulation

Determining which professional statements deserve full protection under the First Amendment, and which can be regulated to protect patients and clients, is not straightforward. Even experienced judges are likely to struggle to draw this line.

But Chiles will be heard by six judges with a track record of issuing decisions that harm important institutions for the sake of partisan ideologies. This means there is a risk that the line will be drawn in a completely illogical place.

Supreme Court Precedents on Professional Speech

Unfortunately, the two most significant Supreme Court precedents on professional speech arose in cases related to abortion and thus became politicized.

The first is the well-known case Planned Parenthood v. Casey (1992). Although it is famous for its conclusion that the Constitution protects the right to an abortion, this ruling also limited the rights of abortion providers regarding freedom of speech, and this part of the Casey decision remains valid.

The First Amendment prohibits the state from compelling anyone to speak; however, Casey upheld the Pennsylvania law that required abortion providers to give certain information to their patients, including state-printed materials encouraging adoption.

In contrast, in the case of National Institute of Family and Life Advocates (NIFLA) v. Becerra (2018), Republican judges struck down a California law that essentially replicated the Pennsylvania law from Casey. The California law required many 'crisis pregnancy centers' to inform their patients about state programs that promote access to abortions.

It is difficult to understand how these two rulings can coexist. As Justice Stephen Breyer noted in his dissent in NIFLA, "if a state can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why can't it require a counselor to tell a woman seeking help during pregnancy about childbirth and abortion services?"

It is no surprise that ADF is heavily relying on NIFLA in the Chiles case, noting the line that "states can regulate professional conduct, even if that conduct involves speech." According to ADF, the Pennsylvania law from Casey was constitutional because it regulated the performance of a 'medical procedure' by requiring doctors to provide certain information to obtain "informed consent" for that procedure. In contrast, art therapy is not a medical procedure—it is simply communication—therefore it is not subject to regulation under the First Amendment.

However, if this argument is correct, it means that all sorts of professional abuses and negligence escape sanction. A doctor advising a patient to ingest poison, or a lawyer urging a client to commit a crime, are effectively committing no act aside from speech. Unless communication between a therapist and a patient is regulated, no legal consequences can be applied to a therapist urging a suicidal person to commit suicide, or to one encouraging a patient to self-harm.

The chances that this Supreme Court, with its 6-3 Republican majority, will uphold the Colorado law are slim. Just as the five Republicans who decided NIFLA applied a more lenient rule to anti-abortion clinics, the current majority of judges is likely to rule in Chiles in a manner consistent with their political beliefs.

However, by disregarding this, they may inflict serious damage on long-standing rules governing medical, legal, mental, and many other professionals. As Colorado notes in its brief, states have long imposed sanctions on professionals who fail to adhere to treatment standards in their practice. Determining the fundamental line between an attorney giving incompetent advice to a client and a therapist offering treatment that fundamentally contradicts the standards of care established by professional organizations is quite challenging.