Are Physician-Patient Communications Protected by the First Amendment?

In the past several years, a number of states have enacted laws restricting physicians’ rights to speak freely with their patients. These laws go beyond informed consent laws enacted in most states in the 1960s and 1970s. While the informed consent laws require physicians to provide certain categories of information to patients prior to invasive treatment—such as the nature of the risks and benefits entailed—these new laws either prohibit physicians from discussing certain topics or mandate that they provide specific information to their patients that is only questionably supported by medical evidence. In the past several years, a number of federal appellate courts have disagreed about the appropriate level of legal protection that should apply to this type of speech. Obviously, the lower the level of First Amendment protection, the more likely a court will uphold a law that restricts a physician’s communications with her patients. Since the Third, Fourth, Fifth, Eighth, Ninth, and Eleventh Circuits have issued conflicting opinions on this issue, the matter is poised for review by the United States Supreme Court