A Case to Watch Regarding the Florida Doctor Speech Restrictions

Eugene Volokh details a pair of cases making their way through the 9th Circuit courts challenging California’s prohibition banning mental health care providers from trying to change sexual orientation for minors. If the 9th Circuit Court of Appeals ends up hearing this case, and upholding the law, you can bet that this decision will be brought up in the appeals for the challenges to the Florida law which bans doctors from asking patients about gun ownership (already held unconstitutional in District Court). My personal opinion is that both laws are unconstitutional, but it does illustrate the notion that there are many on the right and left that aren’t particularly dedicated to the notion of free speech, and completely willing to use government to suppress speech they find repugnant.

14 Responses to “A Case to Watch Regarding the Florida Doctor Speech Restrictions”

  1. Harold says:

    I’m calling bullshit on this comparison:

    The Florida law deals with what we believe to be a clear cut boundary violation, a violation of medical ethics that is entirely appropriate for the state to regulate, if you believe it should be regulating anything about doctors. This sort of thing has also been abused to give families a choice between keeping their children or their guns (a case of that around 1990 in New Hampshire cemented my impression that it was going purple/blue).

    The California law is about an issue of medicine that’s totally politicized. California is implicitly stating (or perhaps explicitly, haven’t looked at the law) that sexual orientation is fixed; if not at birth, soon enough that it can’t be changed and of course trying is likely harmful. It’s a lot more in the direction of legislating pi as 3, except that the science isn’t so clear (I think both cases are true, some people are wired, some not; additionally I don’t see the harm in trying to change—I mean, it’s all voluntary, right?—but then again, if you’re not developing software or doing something you can only do in Hollywood I have no idea why you’d stay in California).

    And it’s very different in kind from the speech issues in Florida.

    • What is so silly about this is that people do change sexual orientation. I used to go to church with a guy who went straight in his 20s, and never looked back. If you search for papers on the subject, you can find studies that demonstrate that women’s sexual orientation is more plastic than men’s sexual orientation.

      All sorts of preferences can be influenced by either negative or positive reinforcement; that is a big chunk of what we do as parents: reinforce positive behavior with rewards; discourage negative behavior, usually with punishments. I had a traumatic experience with a fish when I was very young; as a result, anything that smells like fish makes me queasy — and yet fishsticks are not a problem. For many years, the association of Pepsi and flu because of being very sick for a period where all I had to drink was Pepsi, meant that Pepsi nauseated me. (I have gotten over this.) I know a woman who spent a year in and out of a hospital because of salmonella poisoning from a Mexican restaurant; years later, even the smell of cooking meat was too much for her to bear.

      And yet there is this insistence that premature sexualization CANNOT influence adult sexual orientation, and that no form of treatment can alter it? Perhaps there is no argument for such a change, but pretending this cannot ever work is nonsense.

      • Sebastian says:

        I had a traumatic experience with a fish when I was very young

        I’m guessing it had to have been a pretty big fish.

        • Only relative to my size! My parents caught it off the end of the San Pedro pier, and were cleaning it when I was just old enough to look over the top of the table and see the gruesomeness of it all.

      • Patrick H says:

        Exactly. Look up brain plasticity. I’m reading “The Brain that Changes itself” and it talks about how people’s sexual tastes can change- because the brain can change. People can be straight and go gay. They can be gay and be straight. They can become bi. A lot of it is affected by childhood exposure. Its time we stopped believing a person is static and they never change.

    • Actually, what makes the California law even more outrageous is that it only prohibits reparative therapy aimed at making someone straight; there is no prohibition on therapy aimed at making minors homosexual. It seems odd that you would leave such a gaping hole for equal protection violation, but the goal is to make sure that this particular constituency does not shrink.

    • Jake says:

      I don’t see the harm in trying to change—I mean, it’s all voluntary, right?

      Not necessarily. The law as written (if what I’ve read about it is correct) only applies to minors, who could otherwise be forced into such programs by their parents. Adults remain free to enter those programs if they want to, and are not in a position to be forced.

      My understanding is that there is some evidence (though it is somewhat weak evidence) that these programs can be very psychologically harmful, but that under what circumstances it is or is not harmful, and at what rate, is not understood and cannot be predicted. Conversely, there is no actual evidence I am aware of that this “therapy” is effective, beneficial, or even safe.

      So, the CA law prohibits a “therapy” that has no evidence supporting it and is potentially harmful from being applied to children who are not allowed to refuse it. Adults remain free to try it if they want.

      • Harold says:

        And the “child” can’t just ignore the therapist?

        You’re now also getting into one of the thorniest issues of modern politics: who owns children? To the greater extent you make that the state, we lose everything.

        I don’t follow this subject, but I trust Clayton when he says these therapies can work. In one area that he follows closely, premature sexualization, it’s hard to see therapy of some sort as not necessary to try. I have a very close friend who was subject to that, everything short of actual touching, and it messed her up quite a bit.

        • Jake says:

          And the “child” can’t just ignore the therapist?

          Maybe. I don’t know enough about how it’s done – or what part of the therapy is harmful – to say if that would be effective in preventing any harm. It may also depend on the combination of the child, parents, and therapist.

          You’re now also getting into one of the thorniest issues of modern politics: who owns children? To the greater extent you make that the state, we lose everything.

          I don’t disagree with you there, but this whole law gets into that same issue. It also gets into the related and just as thorny question of at what point does the state step in to prevent something that is potentially harmful to a child when the parents believe it is beneficial?

  2. It was stupid to tell doctors that they couldn’t ask about guns in the home. If you are offended, change doctors.

    • Harold says:

      As doctors become de facto agents of the state under Obamacare, I’m much less blithe about this solution.

      There’s also fairly possible worse cases where switching doctors is going to become well neigh impossible, if enough of the over 50 crowd can and does retire (that’s half our doctors). Or imagine how much more difficult it will become to find a doctor who accepts Medicaid (which pays even worse than Medicare, not counting the anti-doc-fix in Obamacare).

      • This, unfortunately, is a problem of Obamacare, and not just in this area.

        At some point, you put up with a doctor’s quirks, or you go elsewhere. Once the government starts assigning doctors, it may be a different situation.

        • Braden Lynch says:

          Just wait and see how they abuse Obamacare and health information exchanges (HIEs) to attack patient privacy to register gun owners, show they are irresponsible parents, force additional “taxes/fines” for their “dangerous lifestyle choice” and deny certain types of care.

          Gun ownership itself could be declared a mental disorder and hence make you ineligible to have a firearm. Isn’t that neat and tidy?

          Remember: stupid, inept, and probably evil liberal bureaucrats will be writing the regulations. The ACA is a gigantic Trojan Horse to attack private insurance and pharmaceutical companies except instead of Greeks pouring out of it, we’ll have Obamabots causing mayhem.

    • gattsuru says:

      That’s not viable for at least some people, for one thing. There’s places already where it can take months to get caught up to date with a specialist.

      For another, the AMA and various licensing boards are very prone to a specific type of OneTrueWayism. Even without federal interference, they’re already quite content making sure only the sort of doctors that think the right things are doctors.