Science versus the Courts

This month, two California courts issued differing opinions deciding whether California could ban gay conversion therapy based on evidence of harm to minors.  On the same day the Oklahoma Supreme Court struck down two laws requiring abortion providers to practice in accordance with the right wing-dominated state legislature. Immediately after, I was asked if these two decisions were essentially the same, protecting the free speech rights of health-care professionals and stopping the government from interfering in the patient–provider relationship.  But, these issues don’t fit so neatly into a box.

Let me begin by acknowledging that I am not a fan of the argument that health-care providers should be allowed to practice their trade unfettered by “government” intrusion.  Rather, I believe that evidence-based regulation of health care should be the standard, and sometimes that means government action.  But the burden is high, the science must be high quality, and the branch of government engaging in the regulation should be appropriate.  Science, not ideology should drive restrictions.

In the case of the Oklahoma abortion restrictions the government violated all three of these standards. Under one of the struck down laws, women wanting a medication abortion would have been required to take three times as much of the drug as medically needed, return for clinical visits that may reduce overall safety, and as a result, pay three to four times as much for the service. The legislature sought to impose these restrictions to limit the availability of abortion, not to protect women’s access to abortion. 

The second law required women to view their ultrasound images prior to obtaining the procedure—even if the women opposed such viewing. In this case the evidence of harm was more theoretical, but there is also no evidence that forced viewing is helpful. Instead what is at stake is a longstanding principle that when there is no medical need for testing or care, patients may opt out of that service. Again, the legislature sought to impose these restrictions to overtly express its opposition to abortion. All major medical professional organizations opposed these two laws. The following court decisions were unique, in that they struck down laws that over the last two decades courts across the United States have upheld hundreds of times.

In the case of gay conversion therapy, the state is not mandating that a health professional engage in an activity, but rather saying it cannot undertake a particular approach. What is at stake are the rights of parents to raise their children in accordance with their beliefs, balanced against the rights of minors to be protected from harm. Parents’ rights are not absolute: they cannot deny their children lifesaving medical interventions, or keep them from being educated to some degree. And, they cannot physically abuse their children. But in all of these circumstances the harm inflicted by parents’ decision must be significant. I do not know the unique contribution gay-conversion therapy makes to the long-term psychological health of minors whose home environments are also overtly hostile to same-sex attraction, sexual behavior, and LGBT identity. Even if the evidence is overwhelming, we still need to wade carefully into this arena.

In light of the many other bad decisions made by legislatures regarding health care in the past, do we want state legislatures and courts—made up predominately of individuals that did not major in science, medicine, or research methodologies—adjudicating scientific findings? An ideologically driven legislative body with no technical expertise in the provision of health care can just as easily promulgate bad laws as they can good ones.  

Given this concern, where is the appropriate place for science to be debated and health care standards to be set? I believe that the professional bodies and health professional regulators must be expected to take more active roles in these debates. To obtain and maintain a license, health professionals must adhere to professional and ethical codes that are articulated as standards of care. Health-professional bodies need to issue guidelines against practices that cause harm. Then when practices, such as gay conversion therapy, are engaged in outside the standard of care, advocates should use traditional mechanisms for repercussions. For example after Nadya Suleman, known as "Octomom" in the media, delivered octuplets, the medical profession reissued standards of care regarding the number of embryos to be transferred at a time and the California Medical Board revoked the license of the physician who cared for Suleman. While this is not a perfect system, using the regulatory rather than the statutory tools allows for a more dynamic integration of the scientific body of knowledge to affect practice.

Whether or not the law banning gay conversation therapy is eventually found to be constitutional, the LGBT community must continue to increase the visibility of the harms from such practices. In this process, I hope the LGBT community will learn from the mistakes made by the reproductive-rights community, which looked to the Courts to adjudicate the debates over science. Courts simply cannot be the arbitrators of what is right and wrong in the practice of health care. The judicial system in not comprised of appropriate arbitrators of science—and is often times clouded by ideological concerns—the standards of evidence in a court are not the same as the standards of evidence in health care practice, and judicial decisions are static and not able to change with changing scientific knowledge.

But for the health regulatory and health professional systems to take on this role more seriously, two changes are needed: Health-professional bodies must begin to distance themselves from financial conflicts of interest and significant investments in public funding of science must occur. Currently, all public science is under attack and when it addresses a politically controversial issue, like abortion, the funds are almost non-existent. California legislators can express their concerns about gay conversion therapy by investing quickly, using larger and more rigorous studies of the harms of gay conversion therapy. They can mandate that health-professional boards establish standards related to practice, and they can strengthen the rights of minors to opt out of care their parents want for them. Secondary advocates for minors who are undergoing gay conversion therapy, along the lines of what we offer minors in family court, could be supported. 

As advocates of evidence-based health care, we need to expand our toolbox for how to make change and look to the courts less for resolving scientific debates. Sometimes it goes in our favor, but as 20 years of harmful abortion regulation has taught us, often it does not.

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