Most physicians probably assume that they have the right to speak freely with their patients, at least within the constraints imposed by professional ethics and medically supported facts. However, that right has eroded in recent years as numerous states have passed laws that either require physicians to enunciate state-mandated, medically unsupported information to their patients, unsupported by medical evidence, or forbid physicians from discussing certain topics. These laws go far beyond the informed consent laws enacted in most states in the 1960s and 1970s, which only required physicians to provide certain categories of information to patients prior to invasive treatment, e.g. the nature of the risks and benefits entailed.
Since 2013, several federal appellate courts have disagreed about the appropriate level of First Amendment protection that should be applied to physicians’ communications with their patients. The level of protection is important because the greater the level of legal protection, the less likely a court will uphold a law that restricts such physician free speech rights. This disagreement among the federal appellate courts means that the United States Supreme Court may soon be in the position of reviewing the issue.