This Supreme Court term has been another important one for health care. In particular, the Supreme Court was presented with several cases that questioned the scope of the government's power to enact laws relating to health care access or quality, when such laws are viewed by those subject to the regulation as a burden on free speech or religious freedom.
The two cases receiving the most attention were Burwell v. Hobby Lobby and McCullen v. Coakley; in these cases, the Supreme Court limited the government's regulatory power in ways that many fear will undermine health care access. Hobby Lobby held that three closely held, for-profit corporations did not have to comply with a federal prescription contraception mandate, because it would be contrary to the religious beliefs of the companies' owners; McCullen invalidated a state law creating a 35-foot buffer zone around any clinic performing abortions, finding it an unconstitutional restriction on the free speech of anti-abortion protesters. You can learn more about these cases, at my post titled Supreme Court Update: Abortion, Contraception, & "Gay Conversion Therapy."
But there were two other important cases that have not received much attention by the mainstream media - Pickup v. Brown and Welch v. Brown. Pickup and Welch involved constitutional challenges to a California ban on the practice of "gay conversion therapy," also termed Sexual Orientation Change Efforts (SOCE), by health professionals on minors. The Ninth Circuit upheld the SOCE ban as a legitimate exercise of the state's power to regulate mental health professionals. Challengers of the ban - SOCE practitioners, SOCE advocacy organizations, and parents wanting SOCE for their children - petitioned for certiorari by the Supreme Court; but the Supreme Court issued an order declining review, effectively leaving the SOCE ban in place.
Health law scholars and advocates have been watching these cases closely because of the growing number of examples of free speech or religious freedom claims being used to defeat, avoid or invalidate important health protections. The Supreme Court did not explain its reason for denying certiorari in these cases, so trying to predict the constitutional implications of this denial is difficult and probably unwise. Nonetheless, this decision is noteworthy for two reasons. First, it leaves in place a health care regulation that is important for protecting the mental and physical health of a particularly vulnerable population. Second, it lets stand a Ninth Circuit decision that explicitly affirms this governmental power and rejects an expansive definition of free speech rights that could be used to undermine similar protections in the future.
This rest of this blog provides more information on SOCE regulation, the legal challenges that have brought us to this point, and what may be next.