A key precedent in the conversion therapy case involved “crisis pregnancy centers,” which seek to persuade women to carry their pregnancies to term or to offer their offspring for adoption rather than get an abortion.
In both that case and the new one, challengers said that laws regulating what licensed professionals can or must say violate the First Amendment.
The formal name of the precedent, from 2018, is National Institute of Family and Life Advocates v. Becerra, but lawyers call it NIFLA. It concerned a California law that required centers licensed by the state to post notices that free or low-cost abortions were available to low-income women through public programs.
The Supreme Court reversed a lower-court ruling upholding the law. It did not matter, Justice Clarence Thomas wrote for the five-justice majority, that the centers were licensed by the state and were accused of providing incomplete or misleading information to women seeking care.
“Speech is not unprotected merely because it is uttered by ‘professionals,’” Justice Thomas wrote.
He added, quoting an earlier opinion: “When the government polices the content of professional speech, it can fail to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’ Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields.”
Lawyers for Kaley Chiles, the licensed therapist on Tuesday challenging a Colorado law banning counseling meant to change a minor’s gender identity or sexual orientation, cited the California case some 30 times in their main Supreme Court brief.
In that case, like the new one, the plaintiffs were represented by Alliance Defending Freedom, a conservative Christian legal group.
In 2023, dissenting from the Supreme Court’s decision not to hear an earlier conversion therapy case from Washington State, Justice Thomas wrote that the 2018 decision from California was pertinent.
“This case is not the first instance of the Ninth Circuit restricting medical professionals’ First Amendment rights, and, without the court’s review, I doubt it will be the last,” he wrote. “This court recently reversed the Ninth Circuit’s decision to uphold a law compelling crisis pregnancy centers to disseminate government-drafted notices.”
Lawyers for Mr. Chiles quoted extensively from the 2018 decision.
“In NIFLA,” they wrote, “the court reaffirmed that ‘professional speech’ is not ‘a separate category of speech that is subject to different rules’ or afforded ‘diminished constitutional protection.’ The same ‘ordinary First Amendment principles’ that apply outside the professional context apply within it.”
Lawyers for Colorado interpreted the decision differently, noting that it allowed informed-consent requirements and malpractice suits.
“As NIFLA observed,” they wrote, “the First Amendment allows states to regulate substandard professional health care treatment. This remains the case regardless of whether that treatment involves words, as it so often does.”
A divided three-judge panel of the U.S. Court of Appeals for the 10th Circuit, in upholding the Colorado law, wrote that “the key precedent for our purposes is NIFLA.” But it said the decision included an exception for state regulation of professionals’ conduct that only incidentally affects their speech.
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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