National Review: The First Amendment Applies to the Doctor’s Office, Too
The First Amendment protects more than our right to criticize our leaders. It also protects our livelihoods, and sometimes even our very lives. A case scheduled to be heard next week before the Supreme Court may decide whether the government can shut off that lifeline. The Court should side with freedom.
Free speech saved Jun Abell’s life. At 18 months old, Jun’s parents learned he had a rare and deadly brain tumor. Jun’s dad plunged into a feverish phone campaign, calling every pediatric oncologist in the country he could find. Finally, he ran across Shannon MacDonald, a doctor in Massachusetts. Dr. MacDonald specializes in proton therapy, an innovative treatment that could give Jun a fighting chance.
Jun’s family lived in New York, so they consulted with Dr. MacDonald via telehealth. Thankfully, unlike many states, New York law does not forbid telehealth visits between New York patients and out-of-state practitioners. After meeting virtually with Dr. MacDonald, Jun’s family decided to start treatment with her. That decision saved Jun’s life.
But Jun’s fight is not over. He needs regular monitoring to guard against relapse. But there’s a catch: New Jersey, where Jun now lives, is one of those states that prohibit telehealth communication with doctors in other states. Thus, Jun cannot have telehealth visits or other virtual care with Dr. MacDonald, the one person most qualified to keep Jun alive and well.
Jun’s family and Dr. MacDonald, represented by Pacific Legal Foundation, sued New Jersey, arguing that this telehealth ban violates the First Amendment. They lost. The trial court held that New Jersey could prohibit Jun from meeting virtually with the physician who saved his life.
That’s where the Supreme Court comes in. Next week, the court will hold oral argument in Chiles v. Salazar, which asks whether a law banning controversial therapy methods violates the First Amendment. The answer to that question may determine whether Jun and millions of patients like him can receive medical advice from the physician of their choosing.
In Chiles, Colorado banned therapists from using talk therapy with minors “that attempts or purports to change an individual’s sexual orientation or gender identity.” Kaley Chiles, a Colorado therapist whose clinical practice includes this type of therapy, challenged the law under the First Amendment. But the lower courts rejected her claim. Specifically, the Tenth Circuit Court of Appeals held that Kaley Chiles, when she talks to her clients, is not engaged in “speech” at all but rather “conduct” and thus lacks First Amendment protection.
This judicial alchemy, transforming protected speech into unprotected conduct, is the issue now before the Supreme Court. And the Court’s decision will affect far more people than Kaley Chiles and her controversial therapy, including Jun Abell.
This same speech-is-conduct reasoning recently led a federal court in California to reject a First Amendment challenge to California’s ban on out-of-state telehealth. According to the California court, a telehealth consultation over the phone or a video call is conduct, not speech, because it is a form of treatment. Both the telehealth opinion and the Chiles opinion quoted the same line from an earlier Ninth Circuit case that had likewise relied on this speech-conduct sorcery: “States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because those treatments are implemented through speech rather than through scalpel.”
But words and scalpels have some key differences. For one, the Constitution protects one of them but not the other. Further, unlike hands-on treatment, harm caused by doctor-patient speech depends on the listener’s choices. Any harm from bad advice turns on whether the listener decides to follow the advice. When a scalpel slips, the patient bleeds. When a doctor gives bad advice, harm to the patient is still just one possibility.
That’s how speech works: information could lead to bad behavior, but until it does, it is still just information — information that patients are entitled to hear and doctors are entitled to give. The government cannot keep people in the dark for their own good. The First Amendment empowers people with knowledge, along with the privilege and responsibility of deciding what to do with it.
Patients deserve advice dictated by professional judgment rather than political whim. If the government can ban Kaley Chiles’s therapy, then the government could also forbid doctors from counseling against Covid vaccination for young children or recommending Tylenol to pregnant women. As the Supreme Court once said when it invalidated a law regulating pharmaceutical ads: “It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.”
In recent weeks, the First Amendment right to criticize our political leaders has drawn much public attention. As well it should. But while that debate churns, we should not forget that the First Amendment extends beyond the political arena. In Chiles, the Supreme Court will address more than the right of a therapist to give controversial advice. It will also be weighing the rights of people like Jun Abell to fight for their very survival.
This op-ed was originally published in The National Review on September 29, 2025.
