What Supreme Court justices signaled in arguments over Colorado’s conversion therapy ban

Geoff Bennett:

The U.S. Supreme Court today heard arguments in a case that could change standards of medical care and strike down bans on so-called conversion therapy for children.

Conversion therapy broadly refers to attempts to change a person's sexual orientation or gender identity and is banned in 23 states and the District of Columbia. A Colorado therapist, Kaley Chiles, says the ban limits her ability to work with adolescent patients and limits her freedom of speech.

Kaley Chiles, Licensed Professional Counselor:

Struggling kids benefit from access to voluntary counseling conversations that help them as they seek wholeness in gaining peace with their bodies. They deserve better than Colorado's one-size-fits-all approach.

Geoff Bennett:

But the state of Colorado argues the practice is dangerous and not medically sound.

PHIL WEISER (D), Colorado Attorney General: This type of pressure, coercion has been disavowed, discredited by all medical associations.

Geoff Bennett:

"News Hour" Supreme Court analyst and SCOTUSblog co-founder Amy Howe was in the room for arguments in this case. And she joins us now.

It's good to see you.

Amy Howe:

Thanks for having me. It's good to be here.

Geoff Bennett:

So, what is the question before the court here and what is Chiles arguing? We profiled her on the program last night.

Amy Howe:

So, the question before the court is whether or not Colorado's ban on conversion therapy violates Chiles' right to freedom of speech. And the state says it's just regulating treatment by health care professionals, that this is conduct, rather than speech, so the First Amendment doesn't even kick in.

But Chiles says, look, all I do literally is talk therapy and you are telling me that I can't engage in this speech that I want to engage in, when I could engage in the opposite kind of speech, encouraging someone to affirm his or her gender identity. And that is discrimination based on the kinds of messages that I'm espousing.

Geoff Bennett:

And that's why she's invoking the right to free speech.

Amy Howe:

Exactly.

Geoff Bennett:

The state argues that this ban is in place to protect patients, and medical professionals don't have the right to give wrong or harmful advice to patients.

What did the justices make of that argument?

Amy Howe:

The justices — some of the justices, particularly some of the courts' conservative justices, were skeptical. The state's argument is that there is a medical consensus, including by major medical associations like the American Pediatric Association, that conversion therapy doesn't work and is in fact harmful.

But some of the justices were skeptical about this idea of a medical consensus. So Justice Clarence Thomas back in June in a case called United States v. Skrmetti, in which the Supreme Court upheld Tennessee's ban on gender-affirming care, wrote a concurring opinion in which he suggested that the challengers in the Biden administration in that case had given too much weight to claims of medical consensus and expertise.

And so you had Justice Amy Barrett today asking the solicitor general of Colorado, Shannon Stevenson, to point her to the studies that most support Colorado's assertion of risk of harm. But then this questioning of medical consensus was most strongly questioned by Justice Samuel Alito.

SAMUEL ALITO, U.S. Supreme Court Associate Justice:

Was there a time when many medical professionals thought that certain people should not be permitted to procreate because they had low I.Q.s? Was there a time when there were many medical professionals who thought that every child born with Down syndrome should be immediately put in an institution?

Geoff Bennett:

And there was Justice Jackson, who wondered how much freedom counselors should have to express support for practices like conversion therapy under the First Amendment.

JUDGE KETANJI BROWN JACKSON, Supreme Court Nominee:

I understand if Ms. Chiles here were writing an article about conversion therapy or writing — or giving a speech about it. But it's just a little puzzling to me that she would stand in a different position than a medical professional who has exactly the same goals, exactly the same interests, and would just be prescribing medication for that, rather than her talking with the client.

Geoff Bennett:

So, based on all of this, is there any indication on how the court will rule on this case?

Amy Howe:

It's always a little bit hazardous to make predictions based on the oral argument.

Geoff Bennett:

Right.

Amy Howe:

But the justices, there seemed like there was a majority of justices who were skeptical of this Colorado ban. I think the only real question after the oral argument is whether the justices will say outright that Colorado's ban violates the Constitution or whether they will send the case back to the lower courts for them to apply a more searching review.

Geoff Bennett:

And if they do overturn it, what's the broader impact?

Amy Howe:

Well, so there are more than 20 states that have similar laws. And so those states — those states' bans on conversion therapy will also be much harder to defend.

Geoff Bennett:

Amy Howe, thanks, as always, for walking us through this case and the ones to come of this term.

Amy Howe:

Thanks for having me.

Geoff Bennett:

Of course.