Where Free Speech and Healthcare Policy Collide

On Aug. 8, Texas Gov. Greg Abbott issued Executive Order GA46, which directs hospitals to collect information regarding patients who are not lawfully present in the United States, and to inform such patients that any response to the queries for that information will not affect patient care.

The Order does not require the patient answer; it just requires that the question be asked.

A Texas physician who disagrees with the requirement, based largely on the fact that historically, people can obtain healthcare confidentially, with medical professionals generally prohibited from disclosing information about patients, released a video suggesting that when asking the question, medical professionals inform the patient that they are not obligated to answer.

This apparently greatly annoyed Abbott, who wrote on X on Nov. 24, “Hey Texas Children’s Hospital & Baylor College of Medicine, this doctor is putting your Medicaid and Medicare funding at risk.”

Let’s ignore that the Governor has no real say over Medicare funding, and focus on a different question: can an elected official have a temper tantrum about someone’s position and retaliate by imposing some sort of legal or financial penalty?

First, I want to emphasize that the Governor said, “there will be consequences for failing to follow the law in the Executive Order.” So, it is possible that his statement was a threat to enforce the order, not to retaliate for the statement. But the question about retaliation is important. Can a government official penalize someone for accurately describing the law?

The answer is a resounding “no.” Reasonable people may differ on the most fundamental principle in America, but there is a compelling argument that this is it. We have a Bill of Rights, and the very first item in it, typically referred to as the First Amendment, is routinely described as protecting the right of speech. 

If you actually read the text of the First Amendment, the full protections some of us may now take for granted aren’t immediately evident.

The First Amendment says that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or of the right of the people to peaceably assemble and to petition the government for a redress of grievances.” The text only says that Congress shall make no law abridging freedom of speech.

There is no overt restriction on actions by governors, regulators or police officers, so it is possible that they are still permitted to pick on people because of their opinions.

However, starting in the 1900s, the U.S. Supreme Court used the Fourteenth Amendment to apply the protection of the First Amendment to limit state action. It is now well-accepted that neither the state, federal, or local government can censor a viewpoint. There have been a number of instances where people have been arrested for filming actions by a police officer. Courts have been quite consistent in saying that such arrests are improper.

Courts often use a First Amendment analysis to get there, concluding that recording the acts of the government is a form of speech, because the video is used to hold officers accountable. 

These free-speech protections have had some potentially surprising impacts in the healthcare world. Some convictions for violating the Food and Drug Administration’s (FDA’s) laws prohibiting off-label promotion of drugs or devices have been reversed on a free-speech basis.

Courts have said that a person has a right to describe what a drug or device can do. 

The bottom line is that unless the Supreme Court is going to reverse very well-established precedent, elected officials can’t take action on someone’s expression of an opinion. 

One final point that often confuses people. The constitutional protection only stops the government from censorship. Private parties are free to stop speech. Chuck can throw me off the Monitor Mondays broadcast for poor music selection and give my time to Ms. Brantley instead. But the government and its officials can’t take action against someone for expressing an opinion. 

I know that immigration is a complex and heated political issue. But whether you agree with Gov. Abbott’s order or not, we should be able to agree that under the Constitution, in the words of Paul McCartney and Michael Jackson, people are free to “Say, say, say what you want” about policy issues – without any government official extracting revenge.