Patient Advocacy Group Files Amicus Brief in Supreme Court First Amendment Disclosure Case

Group Urges Court to Uphold Patient Protections in California Law
February 26, 2018

Kevin Díaz, national director of legal advocacy for Compassion & Choices

Compassion & Choices has filed an amicus brief urging the U.S. Supreme Court to uphold a ruling by the Ninth U.S. Circuit Court of Appeals that patient protections required by a California law do not violate the First Amendment.

The Supreme Court is scheduled to hear arguments on March 20 in the case, National Institute of Family and Life Advocates, dba NIFLA, et al., Petitioners v. Xavier Becerra, Attorney General of California, et al.

The plaintiffs are three faith-based, non-profit crisis pregnancy centers that allege California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act violates their First Amendment guarantees to free speech and the free exercise of religion. The law requires licensed pregnancy-related clinics to inform patients about the existence of publicly-funded family-planning services, including contraception, prenatal care and abortion. It also requires unlicensed clinics to inform patients that these clinics are not licensed by the State of California.

“The Court should reject petitioners’ invitation to use the First Amendment to narrowly cabin ‘informed consent’ rules and enable those providing healthcare-related services to avoid disclosing the availability of treatment options they do not provide or morally oppose,” urges the brief, filed by Darin M. Sands and Peter D. Hawkes of the Portland, Oregon-based law firm, Lane Powell PC. “Compassion & Choices is concerned that a ruling for the petitioners could threaten the validity of such laws disclosing options at the end of life, and substantially impair patient decision-making.”

Informed consent is generally defined either by what a reasonable patient would want to know or by what the standard of care requires a reasonable physician to disclose. Some states require healthcare providers to specifically inform patients or residents about legal and medically appropriate alternative forms of end-of-life treatment, palliative care, and the right to refuse potentially life-saving or life-prolonging treatment.

In addition, the District of Columbia and six states (California, Colorado, Montana, Oregon, Vermont and Washington) allow terminal ill adults the option to request a prescription for medical aid in dying to peacefully end unbearable suffering.

“At those vulnerable junctures in life when healthcare choices must be made, patients and prospective patients rely on their healthcare providers to provide them with complete, truthful information regarding their options,” concludes the brief, coauthored by Kevin Díaz, national director of legal advocacy for Compassion & Choices, who is based in Portland, Oregon. “Allowing healthcare providers to violate that trust on the sole basis of their personal aversion to a particular treatment option leaves those patients ill-served and erodes the basis of the special relationship between healthcare providers and their patients.”

The full amicus brief is posted at:

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