Bypassing implicit bias training is not a First Amendment right

Racial bias remains a pressing issue in medicine.

In a recent study, the Pew Research Center found that more than half of the White subjects gave preferential treatment to Whites over nonwhites. "Exploring Racial Bias Among Biracial and Single-Race Adults: The IAT" Rich Morin, Pew Research Center, Aug. 19, 2015. This carried over to physicians as well.

When given an implicit association test, which consisted of showing flashing images of Whites and people of other races performing certain activities, and then asking the physicians to quickly give preference to one person, the result published in the American Journal of Public Health shows that US physicians were more likely to choose white people over other races. "Racial Bias Among Doctors Linked to Dissatisfaction with Care, Report Says," Jessica Cumberbatch Anderson, The Huffington Post, May 3, 2012. In sum, the research shows that delivery of good medical care requires that the doctor knows the worth of the patient, and only bias training can confront that head on.

Implicit bias, or the "relatively unconscious and relatively automatic feature of prejudiced judgment and social behavior," in health care often results in inconsistent diagnoses and treatment for patients.

Assembly Bill 241, as codified at Business and Prof. Code Section 2190 et seq., was passed to meet this challenge. The law took effect in January 2023, and requires implicit bias training as a part of Continuing Medical Education.

However, a pair of physicians are fighting back on constitutional grounds. In Khatibi v. Lawson et al, Plaintiffs Drs. Azadeh Khatibi, Marilyn Singleton, and Do No Harm - a Virginia Nonprofit - sued the California Medical Board to overturn the law. The lawsuit was filed because they "do not want to be compelled to include discussion of implicit bias in the continuing medical education courses they teach."

The crux of their claim is that the state cannot compel them to teach subjects, in this case implicit bias, without violating the First Amendment.

But the First Amendment has its limits. BP § 2190 et seq. provides: "(1) [ ] all continuing medical education courses shall contain curriculum that includes the understanding of implicit bias." Examples of how implicit bias affects perceptions and treatment decisions of physicians and surgeons, leading to disparities in health outcomes. (Bus. & Prof. Code, Section 2190.1)

The First Amendment reads: "Congress shall make no law ... abridging the freedom of speech." But this right is not absolute and can be subject to limitations, especially when it comes to public health - which includes racism. As of 2022, racism has been declared a public health crisis by 38 California entities, including state and local governments. (https://www.apha.org/Topics-and-Issues/Racial-Equity/Racism-Declarations.) Indeed, If a requirement to teach certain material is based on legitimate educational goals and does not unreasonably infringe on a teacher's ability to express their own viewpoints, it might not be considered a violation of free speech. California Teachers Ass'n v. Davis, 64 F. Supp. 2d 945, 954 (1999).

Here, the plaintiffs are physicians who refuse to teach, but they cannot escape the public safety exception to the First Amendment. The right to practice medicine is a privilege granted by the state. Virtual Mentor. 2005;7(4):311-314. doi: 10.1001/virtualmentor.2005.7.4.pfor1-0504.

The equal protection clause does not change this fact, because courts often apply a balancing test to determine whether such limitations are constitutional. Although the 14th amendment provides that "[n]o state shall... deny to any person within its jurisdiction the equal protection of the laws," plaintiff's suit falls short of showing harm. Simply arguing that "the efficacy of implicit bias training in reducing disparities and negative outcomes in healthcare is controversial in the medical community and lacks evidence" does not carry the day. The differential treatment that plaintiffs complain about, in the form of mandatory implicit bias training to maintain the privilege to practice, cannot be shown to be arbitrary or discriminatory, and the research on bias and how it affects health outcomes for non-whites supports this fact.

It is true that the First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. However, States may regulate professional conduct, even though that conduct incidentally involves speech. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 884 (1992).

Tingley v. Ferguson, 47 F.4th 1055, 1067 (2022) is also instructive. In that case, the 9th Circuit analyzed whether a Washington law prohibiting conversion therapy violated the right to free speech by regulating what licensed health care providers in Washington can say and do to minor clients within the confines of the counselor-client relationship. Id. The court further looked to earlier precedents to distill principles about whether, and when, a state can regulate the conduct and speech of health care providers without running afoul of the First Amendment. The Court examined National Ass'n of the Advancement of Psychoanalysis v. California Board of Psychology , 228 F.3d 1043 (2000), which upheld California's licensing scheme for mental health providers. Id. at 1056. There, the court rejected the idea that therapists are entitled to special First Amendment protection simply because they "employ speech to treat their clients." Id. The court held that while communication during therapy "is entitled to constitutional protection," it is "not immune from regulation." Id.

The district court should apply the same reasoning to Khatibi because the line between conduct and speech can be difficult to discern, and "the court is invited to draw upon established principles." Id. Whereas "public dialogue" by a professional is at one end of the continuum and receives the greatest First Amendment protection. Id. "At the other end of the continuum is where the regulation of professional conduct falls." Id. at 1229. "At this end, the state's power to regulate is "great" even though this type of regulation "may have an incidental effect on speech." Id.