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Media Alerts - Pickup v. Brown (consolidated with Welch v. Brown) - Ninth Circuit
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November 6, 2013
  Pickup v. Brown (consolidated with Welch v. Brown) - Ninth Circuit
Headline: Ninth Circuit affirms denial of preliminary injunction for California bill prohibiting mental health providers' use of sexual orientation change efforts.

Area of Law: Civil rights; First Amendment

Issues Presented: Whether California Senate Bill 1172 ("SB 1172") 1) violates mental health providers' First Amendment right to free speech; 2) implicates mental health providers' freedom of association rights; 3) is void for vagueness or overbreadth; or 4) infringes upon parents' fundamental right to make important medical decisions for their children.

Brief Summary: In Pickup v. Brown, plaintiffs David Pickup, et al. ("Plaintiff"), appealed from the district court denial of injunctive relief as to SB 1172. In Welch v. Brown, defendant Edmund Brown, on behalf of the State of California appealed the district court's grant of injunctive relief as to SB 1172. The Ninth Circuit granted unqualified review of SB 1172 to resolve the constitutionality of the law, which prohibits California-licensed mental health providers from engaging in Sexual Orientation Change Efforts ("SOCE") with minor patients.

The Ninth Circuit found that because SB 1172 largely regulates conduct, with speech regulation only incidental, rational basis review was appropriate. It held that the legislature has a legitimate interest in protecting the well-being of minors that is rationally supported by SB 1172.

The Court further found that the doctor-patient relationship is neither an "intimate human relationship" nor an association "for the purpose of engaging in activities protected by the First Amendment," thus is not protected by mental health providers' freedom of association rights.

Lastly, the Ninth Circuit rejected the plaintiff's vagueness and overbreadth arguments, and found that despite parents' fundamental right to make important medical decisions for their children, parents do not have a right to opt for treatments the legislature deems harmful.

Extended Summary: SOCE, also called reparative or conversion therapy, is therapy with the goal of changing a person's sexual orientation from homosexual to heterosexual. A practice that began when homosexuality was considered an illness, the treatments range from inducing nausea, vomiting or paralysis and even castration, to assertiveness and affection training in an effort to change homosexual thought patterns from same sex desires to other sex desires.

SB 1172 prohibits California-licensed mental health providers from engaging in SOCE with minor patients, however the law does not limit a provider's ability to publicly or privately discuss their views about SOCE. The California legislature enacted SB 1172 to "protect the well-being of minors and protect (them) against exposure to serious harms caused by sexual orientation change efforts." The legislature notes that there is limited efficacy in practicing SOCE.

In reviewing Plaintiff's First Amendment challenge, the Court examined whether SB 1172 is a regulation more of speech or conduct. The Court recognized a professional's First Amendment right to communicate with the public about matters of public concern, however juxtaposed this with the State's power to regulate professional conduct, even though such regulation may have an incidental effect on speech. The Court noted that the state regulates all kinds of conduct - often in cases where the conduct is deemed harmful - despite that the conduct is carried out by means of language. The state's police power makes regulation of harmful conduct appropriate.

Because SB 1172 is not an abridgement of free speech rights, the law is afforded rational basis review, wherein it will be upheld if the law has a rational relationship to a legitimate state interest. It is without controversy that protecting

    Posted By: Ryan Williams @ 11/06/2013 06:02 PM     9th Circuit  

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