Physicians and Free Speech: Case In Point

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.

 

Program Note:

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

 

Comment on this article

Facebook
Twitter
LinkedIn

David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care 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 this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

Related Stories

Leave a Reply

Please log in to your account to comment on this article.

Featured Webcasts

2026 IPPS Masterclass 3: Master MS-DRG Shifts and NTAPs

2026 IPPS Masterclass Day 3: MS-DRG Shifts and NTAPs

This third session in our 2026 IPPS Masterclass will feature a review of FY26 changes to the MS-DRG methodology and new technology add-on payments (NTAPs), presented by nationally recognized ICD-10 coding expert Christine Geiger, MA, RHIA, CCS, CRC, with bonus insights and analysis from Dr. James Kennedy.

August 14, 2025
2026 IPPS Masterclass Day 2: Master ICD-10-PCS Changes

2026 IPPS Masterclass Day 2: Master ICD-10-PCS Changes

This second session in our 2026 IPPS Masterclass will feature a review the FY26 changes to ICD-10-PCS codes. This information will be presented by nationally recognized ICD-10 coding expert Christine Geiger, MA, RHIA, CCS, CRC, with bonus insights and analysis from Dr. James Kennedy.

August 13, 2025
2026 IPPS Masterclass 1: Master ICD-10-CM Changes

2026 IPPS Masterclass Day 1: Master ICD-10-CM Changes

This first session in our 2026 IPPS Masterclass will feature an in-depth explanation of FY26 changes to ICD-10-CM codes and guidelines, CCs/MCCs, and revisions to the MCE, presented by presented by nationally recognized ICD-10 coding expert Christine Geiger, MA, RHIA, CCS, CRC, with bonus insights and analysis from Dr. James Kennedy.

August 12, 2025

Trending News

Featured Webcasts

The Two-Midnight Rule: New Challenges, Proven Strategies

The Two-Midnight Rule: New Challenges, Proven Strategies

RACmonitor is proud to welcome back Dr. Ronald Hirsch, one of his most requested webcasts. In this highly anticipated session, Dr. Hirsch will break down the complex Two Midnight Rule Medicare regulations, translating them into clear, actionable guidance. He’ll walk you through the basics of the rule, offer expert interpretation, and apply the rule to real-world clinical scenarios—so you leave with greater clarity, confidence, and the tools to ensure compliance.

June 19, 2025
Open Door Forum Webcast Series

Open Door Forum Webcast Series

Bring your questions and join the conversation during this open forum series, live every Wednesday at 10 a.m. EST from June 11–July 30. Hosted by Chuck Buck, these fast-paced 30-minute sessions connect you directly with top healthcare experts tackling today’s most urgent compliance and policy issues.

June 11, 2025
Open Door Forum: The Changing Face of Addiction: Coding, Compliance & Care

Open Door Forum: The Changing Face of Addiction: Coding, Compliance & Care

Substance abuse is everywhere. It’s a complicated diagnosis with wide-ranging implications well beyond acute care. The face of addiction continues to change so it’s important to remember not just the addict but the spectrum of extended victims and the other social determinants and legal ramifications. Join John K. Hall, MD, JD, MBA, FCLM, FRCPC, for a critical Q&A on navigating substance abuse in 2025.  Register today and be a part of the conversation!

July 16, 2025

Trending News

Happy National Doctor’s Day! Learn how to get a complimentary webcast on ‘Decoding Social Admissions’ as a token of our heartfelt appreciation! Click here to learn more →

CYBER WEEK IS HERE! Don’t miss your chance to get 20% off now until Dec. 2 with code CYBER24