The Chiles v. Salazar Oral Argument in the Mirror

Monday on this blog I previewed the oral argument in Chiles v. Salazar, highlighting my ambivalence about the case: although I am in sympathy with Colorado's policy goals in banning conversion therapy, I expressed concern that if Colorado wins on the ground that regulations of talk therapy are not regulations of speech and thus trigger only rational basis scrutiny, then the same argument would be available to sustain a hypothetical red-state ban on gender-affirming care accomplished wholly through talk therapy. Unsurprisingly, several of the Justices raised the same concern during yesterday's argument. Justice Kagan asked about "the exact opposite kind of law," and Justice Gorsuch inquired about a "mirror image" law.

To their credit, both James Campbell, arguing for petitioner Kaley Chiles, and Deputy SG Hashim Mooppan, arguing for the U.S. as amicus, acknowledged that if Colorado's ban triggers strict scrutiny, then so should a mirror-image law banning gender-affirming care via talk therapy. Indeed, Mr. Mooppan even made the point affirmatively. He pointed out that "in the 1970s, it was the standard of care, professional consensus, that being gay was a mental illness. So, on [Colorado's] position, a state in the 1970s could have made it illegal for a therapist in the state to counsel a gay patient that they weren't mentally ill."

That drift of the oral argument confirmed me in my ambivalence but also provided me with considerable reassurance that if Colorado loses, a red state defending a (thus-far hypothetical) ban on gender-affirming care accomplished through talk therapy would also lose. In my column on Monday, I offered the following matrix of possible outcomes:

	Gender-Affirming Ban Valid	Gender-Affirming Ban Invalid
Conversion Ban Valid	(Valid, Valid)	(Valid, Invalid)
Conversion Ban Invalid	(Invalid, Valid)	(Invalid, Invalid)

Yesterday's argument persuaded me that by far the most likely outcome of the real case and the hypothetical case lies in quadrant 4.

The mirror image problem was more challenging for Colorado Solicitor General Shannon Stevenson. As I noted in discussing her brief in my essay on Monday, the state's position is that strict scrutiny does not apply to state prohibition of treatments--including treatments accomplished by talk therapy--by a licensed professional where the banned treatment falls outside the standard of care. Mr. Mooppan's example of what we now regard as the very harmful 1970s-era standard of care called into question placing so much weight on that standard, as did some questions by Justice Alito pointing to prior standards of care that were rooted in eugenics.

I'm not entirely sure those objections were strictly relevant to the First Amendment question. All sorts of medical treatments that were once the standard of care are now regarded as barbaric. Leeches still have a limited place in modern medicine, but they were once used as (harmful) treatments for numerous ailments. Within the last century, doctors prescribed cigarettes. The fact that what's deemed the standard of care changes with advances in medical science does not necessarily call into question legal tests--such as the test for medical malpractice liability or, more to the point, the test promoted by Colorado--that rely on the standard of care.

Nonetheless, Ms. Stevenson seemed to lean too hard on the standard of care. She rejected the mirror-image proposition because, she said, Colorado's ban applies to treatments that fall outside the standard of care, whereas the hypothetical red-state ban on gender-affirming care via talk therapy would apply to a standard-of-care treatment. As I noted on Monday, this argument might be thought a bit of a non sequitur. The fact that a state bans treatments outside the standard of care could be a reason why the state ban survives strict scrutiny, but it doesn't seem to have anything to do with whether such a ban triggers strict scrutiny.

To be sure, Ms. Stevenson offered a reason why she thought otherwise. Relying on some language in National Institute of Family Life Advocates (NIFLA) v. Becerra quoting NAACP v. Button, she contended that bans on treatments outside the standard of care "fall within the traditional purview of state regulation of professional conduct." But it's worth noting that the Court sided with the free speech claimants in both of those cases. Moreover, whether Colorado's ban falls within such a tradition depends on the extent to which the ban can be analogized to malpractice liability--which is contested in the case.

Suppose, however, that we concede Ms. Stevenson's argument. In other words, suppose one thinks that Colorado's ban doesn't trigger strict scrutiny because state bans on treatments outside the standard of care fall within a NIFLA/Button carve-out for traditional regulations of professional conduct. What does that imply for mirror-image laws? On that question, Ms. Stevenson had difficulty with a line of questioning from Justices Gorsuch and Barrett. They asked her about treatments about which there is disagreement among the medical community. It took Ms. Stevenson forever (several minutes, occupying pages 62-69 of the oral argument transcript) to get there, but I think she eventually conceded the point.

Or at least she ought to have conceded the point. If there really is uncertainty of the sort described by Justices Gorsuch and Barrett--in which there are two competing schools of thought among medical experts about the best treatment for a given condition--then a treatment that falls within either school of thought is typically deemed within the standard of care. Indeed, this is known in the law of medical malpractice as the "two schools of thought" doctrine. I couldn't find any Colorado cases that expressly endorse (or reject) the two schools of thought doctrine, but that hardly matters, because a state's own law wouldn't define the contours of the federal right to free speech. If the state is relying on a tradition regarding how the standard of care is defined, the tradition will be drawn from the general approach of courts, not any one state's approach.

The bottom line is that whether or not Ms. Stevenson ultimately conceded the point, the oral argument pretty clearly demonstrated that the logic of her position compels a concession. Thus everyone is more or less in agreement (whether they acknowledge it or not): the Colorado law and the hypothetical red-state mirror-image law will stand or fall together. Based on the oral argument yesterday, the smart money is on fall.