David Pickup v. Edmund Brown, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID H. PICKUP; CHRISTOPHER H. No. 12-17681

ROSICK; JOSEPH NICOLOSI; ROBERT

VAZZO; NATIONAL ASSOCIATION D.C. No.

FOR RESEARCH AND THERAPY OF 2:12-CV-02497-

HOMOSEXUALITY, a Utah non-profit KJM-EFB

organization; AMERICAN

ASSOCIATION OF CHRISTIAN

COUNSELORS, a Virginia non-profit

association; JACK DOE 1, Parent of

John Doe 1; JANE DOE 1, Parent of

John Doe 1; JOHN DOE 1, a minor,

guardian ad litem Jane Doe, guardian

ad litem Jack Doe; JACK DOE 2,

Parent of John Doe 2; JANE DOE 2,

Parent of John Doe 2; JOHN DOE 2, a

minor, guardian ad litem Jack Doe,

guardian ad litem Jane Doe,

Plaintiffs-Appellants,

v.

EDMUND G. BROWN, JR., Governor

of the State of California, in his

official capacity; ANNA M.

CABALLERO, Secretary of the

California State and Consumer

Services Agency, in her official

capacity; SHARON LEVINE, President

of the Medical Board of California,

in her official capacity; KIM

2 PICKUP V. BROWN

MADSEN, Executive Officer of the

California Board of Behavioral

Sciences, in her official capacity;

MICHAEL ERICKSON, President of the

California Board of Psychology, in

his official capacity,

Defendants-Appellees,

and

EQUALITY CALIFORNIA,

Intervenor-Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, District Judge, Presiding

DONALD WELCH; ANTHONY DUK; No. 13-15023

AARON BITZER,

Plaintiffs-Appellees, D.C. No.

2:12-CV-02484-

v. WBS-KJN

EDMUND G. BROWN, JR., Governor

of the State of California, in his OPINION

official capacity; ANNA M.

CABALLERO, Secretary of California

State and Consumer Services

Agency, in her official capacity;

DENISE BROWN, Case Manager,

Director of Consumer Affairs, in her

official capacity; CHRISTINE

PICKUP V. BROWN 3

WIETLISBACH, PATRICIA LOCK-

DAWSON, SAMARA ASHLEY, HARRY

DOUGLAS, JULIA JOHNSON, SARITA

KOHLI, RENEE LONNER, KAREN

PINES, CHRISTINA WONG, in their

official capacities as members of the

California Board of Behavioral

Sciences; SHARON LEVINE, MICHAEL

BISHOP, SILVIA DIEGO, DEV

GNANADEV, REGINALD LOW, DENISE

PINES, JANET SALOMONSON, GERRIE

SCHIPSKE, DAVID SERRANO SEWELL,

BARBARA YAROSLAVSKY, in their

official capacities as members of the

Medical Board of California,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, Senior District Judge, Presiding

Argued and Submitted

April 17, 2013—San Francisco, California

Filed August 29, 2013

Before: Alex Kozinski, Chief Judge, and Susan P. Graber,

and Morgan Christen, Circuit Judges.

Opinion by Judge Graber

4 PICKUP V. BROWN

SUMMARY*

Civil Rights

Reversing an order granting preliminary injunctive relief

in Welch v. Brown, 13-15023, and affirming the denial of

preliminary injunctive relief in Pickup v. Brown, 12-17681,

the panel held that California Senate Bill 1172, which bans

state-licensed mental health providers from engaging in

“sexual orientation change efforts” with patients under 18

years of age, does not violate the free speech rights of

practitioners or minor patients, is neither vague nor

overbroad, and does not violate parents’ fundamental rights.

The panel held that Senate Bill 1172 regulates

professional conduct, not speech and therefore was subject

only to a rational basis review. The panel held that under its

police power, California has authority to prohibit licensed

mental health providers from administering therapies that the

legislature has deemed harmful, and the fact that speech may

be used to carry out those therapies does not turn the

prohibitions of conduct into prohibitions of speech. The

panel further concluded that the First Amendment does not

prevent a state from regulating treatment even when that

treatment is performed through speech alone. The panel

concluded that the record demonstrated that the legislature

acted rationally when it decided to protect the well-being of

minors by prohibiting mental health providers from using

“sexual orientation change efforts” on persons under 18.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

PICKUP V. BROWN 5

The panel further held that: (1) SB 1172 did not implicate

the right to freedom of association because freedom of

association does not encompass the therapist-client

relationship; (2) SB 1172 was neither void for vagueness nor

overbroad because the text of SB 1172 was clear to a

reasonable person and any incidental effect that the ban had

on speech was small in comparison to its legitimate sweep;

and (3) the ban did not infringe on the fundamental rights of

parents because parents do not have the right to choose a

specific type of provider for a specific medical or mental

health treatment that the state has reasonably deemed

harmful.

COUNSEL

No. 12-17681

Mathew D. Staver (argued) and Anita L. Staver, Liberty

Counsel, Maitland, Florida; Mary E. McAlister, Stephen M.

Crampton, and Daniel J. Schmid, Liberty Counsel,

Lynchburg, Virginia, for Plaintiffs-Appellants David H.

Pickup et al.

Alexandra Robert Gordon (argued), Deputy Attorney

General, Kamala D. Harris, Attorney General of California,

Douglas J. Woods, Senior Assistant Attorney General, Tamar

Pachter, Supervising Deputy Attorney General, and Daniel J.

Powell and Rei R. Onishi, Deputy Attorneys General, San

Francisco, California, for Defendants-Appellees Edmund G.

Brown, Jr., et al.

6 PICKUP V. BROWN

Shannon P. Minter (argued), National Center for Lesbian

Rights, San Francisco, California; David C. Dinielli, Munger,

Tolles & Olson LLP, Los Angeles, California, for

Intervenor/Defendant-Appellee.

Robert P. Taylor, Arnold & Porter LLP, San Francisco,

California, for Amici Curiae American Association for

Marriage and Family Therapy-California Division, et al.;

Elizabeth O. Gill, ACLU Foundation of Northern California,

Inc., San Francisco, California, for Amicus Curiae American

Civil Liberties Union Foundation of Northern California; Eric

Alan Isaacson, San Diego, California, and Stacey M. Kaplan,

San Francisco, California, for Amici Curiae California Faith

for Equality, et al.; Brad W. Seiling, Benjamin G. Shatz, and

Justin Jones Rodriquez, Manatt, Phelps & Phillips, LLP, Los

Angeles, California, and Hayley Gorenberg, Lambda Legal

Defense and Education Fund, Inc., New York, New York,

and Shelbi D. Day, Lambda Legal Defense and Education

Fund, Inc., Los Angeles, California, for Amici Curiae

Children’s Law Center of California, et al.; Jay Rapaport,

Covington & Burling LLP, San Francisco, California, for

Amicus Curiae Dr. Jack Drescher, M.D.; Jon B. Eisenberg

and Barry R. Levy, Encino, California, for Amicus Curiae

First Amendment Scholars; Eileen R. Ridley, Thomas F.

Carlucci, Patrick T. Wong, and Kristy K. Marino, Foley &

Lardner LLP, San Francisco, California, for Amicus Curiae

Health Law Scholars; Adam L. Gray and James Maxwell

Cooper, Kirkland & Ellis LLP, San Francisco, California, for

Amici Curiae Medical Professionals Tonya Chaffee, MD,

MPH, et al.; Tara M. Steeley, Deputy City Attorney, and

Dennis J. Herrera, City Attorney, and Therese Stewart, Mollie

Lee, and Sara Eisenberg, Deputy City Attorneys, San

Francisco, California, for Amicus Curiae The City and

County of San Francisco; and Sanford Jay Rosen, Rosen Bien

PICKUP V. BROWN 7

Galvan & Grunfeld LLP, San Francisco, California, for

Amicus Curiae Survivors of Sexual Orientation Change

Efforts.

No. 13-15023

Alexandra Robert Gordon (argued), Deputy Attorney

General, Kamala D. Harris, Attorney General of California,

Douglas J. Woods, Senior Assistant Attorney General, Tamar

Pachter, Supervising Deputy Attorney General, and Daniel J.

Powell and Rei R. Onishi, Deputy Attorneys General, and

Craig J. Konnoth, Deputy Solicitor General, San Francisco,

California, for Defendants-Appellants Edmund G. Brown, Jr.,

et al.

Kevin T. Snider (argued), Matthew B. McReynolds, and

Michael J. Peffer, Pacific Justice Institute, Sacramento,

California, for Plaintiffs-Appellees Donald Welch et al.

Elizabeth O. Gill, ACLU Foundation of Northern California,

Inc., San Francisco, California, for Amicus Curiae American

Civil Liberties Union Foundation of Northern California;

Peter D. Lepiscopo, William P. Morrow, James M. Griffiths,

and Michael W. Healy, Lepiscopo & Associates Law Firm,

San Diego, California, for Amicus Curiae American College

of Pediatricians; Eric Alan Isaacson, San Diego, California,

and Stacey M. Kaplan, San Francisco, California, for Amici

Curiae California Faith for Equality, et al.; Brad W. Seiling

and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los

Angeles, California, and Hayley Gorenberg, Lambda Legal

Defense and Education Fund, Inc, New York, New York, and

Shelbi D. Day, Lambda Legal Defense and Education Fund,

Inc., Los Angeles, California, for Amici Curiae Children’s

Law Center of California, et al.; Shannon P. Minter, National

8 PICKUP V. BROWN

Center for Lesbian Rights, San Francisco, California, and

David C. Dinielli, Munger, Tolles & Olson LLP, Los

Angeles, California, for Amicus Curiae Equality California;

Jon B. Eisenberg and Barry R. Levy, Encino, California, for

Amicus Curiae First Amendment Scholars; John A. Eidsmoe

and Joshua M. Pendergrass, Foundation for Moral Law,

Montgomery, Alabama, for Amicus Curiae Foundation for

Moral Law; Eileen R. Ridley, Thomas F. Carlucci, Patrick T.

Wong, and Kristy K. Marino, Foley & Lardner LLP, San

Francisco, California, for Amicus Curiae Health Law

Scholars; Dean R. Broyles, The National Center for Law &

Policy, Escondido, California, for Amicus Curiae Parents and

Friends of Ex-Gays & Gays; and Sanford Jay Rosen, Rosen

Bien Galvan & Grunfeld LLP, San Francisco, California, for

Amicus Curiae Survivors of Sexual Orientation Change

Efforts.

OPINION

GRABER, Circuit Judge:

The California legislature enacted Senate Bill 1172 to ban

state-licensed mental health providers from engaging in

“sexual orientation change efforts” (“SOCE”) with patients

under 18 years of age. Two groups of plaintiffs sought to

enjoin enforcement of the law, arguing that SB 1172 violates

the First Amendment and infringes on several other

constitutional rights.

In Welch v. Brown, No. 13-15023, the district court ruled

that Plaintiffs were likely to succeed on the merits of their

First Amendment claim and that the balance of the other

preliminary-injunction factors tipped in their favor; thus, the

PICKUP V. BROWN 9

court granted a preliminary injunction. In Pickup v. Brown,

No. 12-17681, the district court ruled that Plaintiffs were

unlikely to succeed on the merits of any of their claims and

denied preliminary relief. The losing parties timely appealed.

We address both appeals in this opinion.

Although we generally review for abuse of discretion a

district court’s decision to grant or deny a preliminary

injunction, we may undertake plenary review of the issues if

a district court’s ruling “‘rests solely on a premise as to the

applicable rule of law, and the facts are established or of no

controlling relevance.’” Gorbach v. Reno, 219 F.3d 1087,

1091 (9th Cir. 2000) (en banc) (quoting Thornburgh v. Am.

Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 755–57

(1986)). Because those conditions are met here, we

undertake plenary review and hold that SB 1172, as a

regulation of professional conduct, does not violate the free

speech rights of SOCE practitioners or minor patients, is

neither vague nor overbroad, and does not violate parents’

fundamental rights. Accordingly, we reverse the order

granting preliminary relief in Welch and affirm the denial of

preliminary relief in Pickup.

FACTUAL AND PROCEDURAL BACKGROUND

A. Sexual Orientation Change Efforts (“SOCE”)

SOCE, sometimes called reparative or conversion

therapy, began at a time when the medical and psychological

community considered homosexuality an illness. SOCE

encompasses a variety of methods, including both aversive

and non-aversive treatments, that share the goal of changing

an individual’s sexual orientation from homosexual to

heterosexual. In the past, aversive treatments included

10 PICKUP V. BROWN

inducing nausea, vomiting, or paralysis; providing electric

shocks; or having an individual snap an elastic band around

the wrist when aroused by same-sex erotic images or

thoughts. Even more drastic methods, such as castration,

have been used. Today, some non-aversive treatments use

assertiveness and affection training with physical and social

reinforcement to increase other-sex sexual behaviors. Other

non-aversive treatments attempt “to change gay men’s and

lesbians’ thought patterns by reframing desires, redirecting

thoughts, or using hypnosis, with the goal of changing sexual

arousal, behavior, and orientation.” American Psychological

Association, Appropriate Therapeutic Responses to Sexual

Orientation 22 (2009). The plaintiff mental health providers

in these cases use only non-aversive treatments.

In 1973, homosexuality was removed from the Diagnostic

and Statistical Manual of Mental Disorders. Shortly

thereafter the American Psychological Association declared

that homosexuality is not an illness. Other major mental

health associations followed suit. Subsequently, many mental

health providers began questioning and rejecting the efficacy

and appropriateness of SOCE therapy. Currently, mainstream

mental health professional associations support affirmative

therapeutic approaches to sexual orientation that focus on

coping with the effects of stress and stigma. But a small

number of mental health providers continue to practice, and

advocate for, SOCE therapy.

PICKUP V. BROWN 11

B. Senate Bill 1172

Senate Bill 1172 defines SOCE as “any practices by

mental health providers[1] that seek to change an individual’s

sexual orientation[,] . . . includ[ing] efforts to change

behaviors or gender expressions, or to eliminate or reduce

sexual or romantic attractions or feelings toward individuals

of the same sex.” Cal. Bus. & Prof. Code § 865(b)(1).

SOCE, however,

does not include psychotherapies that: (A)

provide acceptance, support, and

understanding of clients or the facilitation of

clients’ coping, social support, and identity

exploration and development, including

sexual orientation-neutral interventions to

prevent or address unlawful conduct or unsafe

sexual practices; and (B) do not seek to

change sexual orientation.

1

California Business and Professions Code section 865(a) defines

“mental health provider” as

a physician and surgeon specializing in the practice of

psychiatry, a psychologist, a psychological assistant,

intern, or trainee, a licensed marriage and family

therapist, a registered marriage and family therapist,

intern, or trainee, a licensed educational psychologist,

a credentialed school psychologist, a licensed clinical

social worker, an associate clinical social worker, a

licensed professional clinical counselor, a registered

clinical counselor, intern, or trainee, or any other person

designated as a mental health professional under

California law or regulation.

12 PICKUP V. BROWN

Id. § 865(b)(2). A licensed mental health provider’s use of

SOCE on a patient under 18 years of age is “considered

unprofessional conduct,” which will subject that provider to

“discipline by the licensing entity for that mental health

provider.” Id. § 865.2.

Importantly, SB 1172 does not do any of the following:

• Prevent mental health providers from communicating

with the public about SOCE

• Prevent mental health providers from expressing their

views to patients, whether children or adults, about

SOCE, homosexuality, or any other topic

• Prevent mental health providers from recommending

SOCE to patients, whether children or adults

• Prevent mental health providers from administering

SOCE to any person who is 18 years of age or older

• Prevent mental health providers from referring minors

to unlicensed counselors, such as religious leaders

• Prevent unlicensed providers, such as religious

leaders, from administering SOCE to children or

adults

• Prevent minors from seeking SOCE from mental

health providers in other states

Instead, SB 1172 does just one thing: it requires licensed

mental health providers in California who wish to engage in

“practices . . . that seek to change a [minor’s] sexual

PICKUP V. BROWN 13

orientation” either to wait until the minor turns 18 or be

subject to professional discipline. Thus, SB 1172 regulates

the provision of medical treatment, but leaves mental health

providers free to discuss or recommend treatment and to

express their views on any topic.

The legislature’s stated purpose in enacting SB 1172 was

to “protect[] the physical and psychological well-being of

minors, including lesbian, gay, bisexual, and transgender

youth, and [to] protect[] its minors against exposure to

serious harms caused by sexual orientation change efforts.”

2012 Cal. Legis. Serv. ch. 835, § 1(n). The legislature relied

on the well documented, prevailing opinion of the medical

and psychological community that SOCE has not been shown

to be effective and that it creates a potential risk of serious

harm to those who experience it. Specifically, the legislature

relied on position statements, articles, and reports published

by the following organizations: the American Psychological

Association, the American Psychiatric Association, the

American School Counselor Association, the American

Academy of Pediatrics, the American Medical Association,

the National Association of Social Workers, the American

Counseling Association, the American Psychoanalytic

Association, the American Academy of Child and Adolescent

Psychiatry, and the Pan American Health Organization.

In particular, the legislature relied on a report created by

a Task Force of the American Psychological Association.

That report resulted from a systematic review of the scientific

literature on SOCE. Methodological problems with some of

the reviewed studies limited the conclusions that the Task

Force could draw. Nevertheless, the report concluded that

SOCE practitioners have not demonstrated the efficacy of

14 PICKUP V. BROWN

SOCE and that anecdotal reports of harm raise serious

concerns about the safety of SOCE.

C. Procedural History

Plaintiffs in Welch include two SOCE practitioners and an

aspiring SOCE practitioner. Plaintiffs in Pickup include

SOCE practitioners, organizations that advocate SOCE,

children undergoing SOCE, and their parents. All sought a

declaratory judgment that SB 1172 is unconstitutional and

asked for injunctive relief to prohibit enforcement of the law.2

In Welch, Plaintiffs moved for preliminary injunctive

relief, arguing that SB 1172 violates their free speech and

privacy rights. They also argued that the law violates the

religion clauses and is unconstitutionally vague and

overbroad under the First Amendment.

The Welch court held that SB 1172 is subject to strict

scrutiny because it would restrict the content of speech and

suppress the expression of particular viewpoints. It reasoned

that the fact that the law is a professional regulation does not

change the level of scrutiny. The court granted preliminary

relief because it determined that the state was unlikely to

satisfy strict scrutiny, Plaintiffs would suffer irreparable harm

2

In Pickup, Equality California, an advocacy group for gay rights,

sought and received intervenor status to defend SB 1172. Pickup

Plaintiffs argue that the Supreme Court’s recent decision in Hollingsworth

v. Perry, 133 S. Ct. 2652 (2013), means that Equality California does not

have standing to defend the statute. We need not resolve that question,

however, because the State of California undoubtedly has standing to

defend its statute, and “the presence in a suit of even one party with

standing suffices to make a claim justiciable.” Brown v. City of Los

Angeles, 521 F.3d 1238, 1240 n.1 (9th Cir. 2008) (per curiam).

PICKUP V. BROWN 15

in the absence of an injunction, the balance of the equities

tipped in their favor, and the injunction was in the public

interest. Because the district court granted relief on their free

speech claim, it did not reach Plaintiffs’ other constitutional

challenges.3

In Pickup, Plaintiffs moved for preliminary injunctive

relief, arguing that SB 1172 violates the First and Fourteenth

Amendments by infringing on SOCE practitioners’ right to

free speech, minors’ right to receive information, and parents’

right to direct the upbringing of their children. They also

argued that SB 1172 is unconstitutionally vague.

The Pickup court denied Plaintiffs’ motion because it

determined that they were unlikely to prevail on the merits of

any of their claims. It reasoned that, because the plain text of

SB 1172 bars only treatment, but not discussions about

treatment, the law regulates primarily conduct rather than

speech. Applying the rational basis test, the court ruled that

3

The Welch Plaintiffs’ response brief contains a single paragraph

asserting that SB 1172 violates the religion clauses of the First

Amendment. That paragraph, which cites neither the record nor any case,

is part of Plaintiffs’ argument that SB 1172 is not narrowly tailored to

achieve a compelling government purpose, as required by the Free Speech

Clause, because it contains no clergy exemption. The religion claim,

however, is not “specifically and distinctly argued,” as ordinarily required

for us to consider an issue on appeal. Thompson v. Runnels, 705 F.3d

1089, 1099–1100 (9th Cir. 2013) (internal quotation marks omitted),

petition for cert. filed, __ U.S.L.W. __ (U.S. June 28, 2013) (No.

13-5127); see also Maldonado v. Morales, 556 F.3d 1037, 1048 n.4 (9th

Cir. 2009) (“Arguments made in passing and inadequately briefed are

waived.”). Moreover, although the Welch Plaintiffs raised the claim in the

district court, the court did not rule on it because it granted relief on their

free speech claim. In these circumstances, we decline to address the

religion claim. The district court may do so in the first instance.

16 PICKUP V. BROWN

Plaintiffs were unlikely to show a violation of the SOCE

practitioners’ free speech rights or the minors’ right to receive

information. As for vagueness, the court ruled that the text of

the statute is clear enough to put mental health providers on

notice of what is prohibited. Finally, the court ruled that SB

1172 does not implicate parents’ right to control the

upbringing of their children because that right does not

encompass the right to choose a specific mental health

treatment that the state has reasonably deemed harmful to

minors.

DISCUSSION

A. Free Speech Rights

At the outset, we must decide whether the First

Amendment requires heightened scrutiny of SB 1172. As

explained below, we hold that it does not.

The first step in our analysis is to determine whether SB

1172 is a regulation of conduct or speech. Two of our cases

guide our decision: National Association for the

Advancement of Psychoanalysis v. California Board of

Psychology, 228 F.3d 1043 (9th Cir. 2000) (“NAAP”), and

Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).

In NAAP, 228 F.3d at 1053, psychoanalysts who were not

licensed in California brought a First Amendment challenge

to California’s licensing scheme for mental health providers.

The licensing scheme required that persons who provide

psychological services to the public for a fee obtain a license,

which in turn required particular educational and experiential

credentials. Id. at 1047. The plaintiffs alleged that the

licensing scheme violated their First Amendment right to

PICKUP V. BROWN 17

freedom of speech because the license examination tested

only certain psychological theories and required certain

training; plaintiffs had studied and trained under different

psychoanalytic theories. Id. at 1055. We were equivocal

about whether, and to what extent, the licensing scheme in

NAAP implicated any free speech concerns. Id. at 1053 (“We

conclude that, even if a speech interest is implicated,

California’s licensing scheme passes First Amendment

scrutiny.” (emphasis added)); id. at 1056 (“Although some

speech interest may be implicated, California’s content-

neutral mental health licensing scheme is a valid exercise of

its police power . . . .” (emphasis added)). We reasoned that

prohibitions of conduct have “‘never been deemed an

abridgement of freedom of speech . . . merely because the

conduct was in part initiated, evidenced, or carried out by

means of language.’” See id. at 1053 (ellipsis in original)

(quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490,

502 (1949)). And, importantly, we specifically rejected the

argument that “because psychoanalysis is the ‘talking cure,’

it deserves special First Amendment protection because it is

‘pure speech.’” Id. at 1054. We reasoned: “[T]he key

component of psychoanalysis is the treatment of emotional

suffering and depression, not speech. That psychoanalysts

employ speech to treat their clients does not entitle them, or

their profession, to special First Amendment protection.” Id.

(internal quotation marks and ellipsis omitted).

Nevertheless, we concluded that the “communication that

occurs during psychoanalysis is entitled to constitutional

protection, but it is not immune from regulation.” Id. But we

neither decided how much protection that communication

should receive nor considered whether the level of protection

might vary depending on the function of the communication.

Given California’s strong interest in regulating mental health,

18 PICKUP V. BROWN

we held that the licensing scheme at issue in NAAP was a

valid exercise of its police power. Id. at 1054–55.

We went on to conclude that, even if the licensing scheme

in NAAP regulated speech, it did not trigger strict scrutiny

because it was both content neutral and viewpoint neutral. Id.

at 1055. We reasoned that the licensing laws did not “dictate

what can be said between psychologists and patients during

treatment.” Id. Further, we observed that those laws were

“not adopted because of any disagreement with

psychoanalytical theories” but for “the important purpose of

protecting public health, safety, and welfare.” Id. at 1056

(internal quotation marks omitted). We again concluded that

the laws were a valid exercise of California’s police power.

Id.

In Conant, 309 F.3d at 633–34, we affirmed a district

court’s order granting a permanent injunction that prevented

the federal government from revoking a doctor’s DEA

registration or initiating an investigation if he or she

recommended medical marijuana. The federal government

had adopted a policy that a doctor’s “recommendation” of

marijuana would lead to revocation of his or her license. Id.

at 632. But the government was “unable to articulate exactly

what speech [the policy] proscribed, describing it only in

terms of speech the patient believes to be a recommendation

of marijuana.” Id. at 639. Nevertheless, the demarcation

between conduct and speech in Conant was clear. The policy

prohibited doctors from prescribing or distributing marijuana,

and neither we nor the parties disputed the government’s

authority to prohibit doctors from treating patients with

marijuana. Id. at 632, 635–36. Further, the parties agreed

that “revocation of a license was not authorized where a

PICKUP V. BROWN 19

doctor merely discussed the pros and cons of marijuana use.”

Id. at 634 (emphasis added).

We ruled that the policy against merely “recommending”

marijuana was both content- and viewpoint-based. Id. at 637.

It was content-based because it covered only doctor-patient

speech “that include[d] discussions of the medical use of

marijuana,” and it was viewpoint-based because it

“condemn[ed] expression of a particular viewpoint, i.e., that

medical marijuana would likely help a specific patient.” Id.

We held that the policy did not withstand heightened First

Amendment scrutiny because it lacked “the requisite narrow

specificity” and left “doctors and patients no security for free

discussion.” Id. at 639 (internal quotation marks omitted).

We distill the following relevant principles from NAAP

and Conant: (1) doctor-patient communications about

medical treatment receive substantial First Amendment

protection, but the government has more leeway to regulate

the conduct necessary to administering treatment itself; (2)

psychotherapists are not entitled to special First Amendment

protection merely because the mechanism used to deliver

mental health treatment is the spoken word; and (3)

nevertheless, communication that occurs during

psychotherapy does receive some constitutional protection,

but it is not immune from regulation.

Because those principles, standing alone, do not tell us

whether or how the First Amendment applies to the

regulation of specific mental health treatments, we must go

on to consider more generally the First Amendment rights of

professionals, such as doctors and mental health providers.

In determining whether SB 1172 is a regulation of speech or

20 PICKUP V. BROWN

conduct, we find it helpful to view this issue along a

continuum.

At one end of the continuum, where a professional is

engaged in a public dialogue, First Amendment protection is

at its greatest. Thus, for example, a doctor who publicly

advocates a treatment that the medical establishment

considers outside the mainstream, or even dangerous, is

entitled to robust protection under the First Amendment—just

as any person is—even though the state has the power to

regulate medicine. See Lowe v. SEC, 472 U.S. 181, 232

(1985) (White, J., concurring) (“Where the personal nexus

between professional and client does not exist, and a speaker

does not purport to be exercising judgment on behalf of any

particular individual with whose circumstances he is directly

acquainted, government regulation ceases to function as

legitimate regulation of professional practice with only

incidental impact on speech; it becomes regulation of

speaking or publishing as such, subject to the First

Amendment’s command that ‘Congress shall make no

law . . . abridging the freedom of speech, or of the press.’”);

Robert Post, Informed Consent to Abortion: A First

Amendment Analysis of Compelled Physician Speech,

2007 U. Ill. L. Rev. 939, 949 (2007) (“When a physician

speaks to the public, his opinions cannot be censored and

suppressed, even if they are at odds with preponderant

opinion within the medical establishment.”); cf. Bailey v.

Huggins Diagnostic & Rehab. Ctr., Inc., 952 P.2d 768, 773

(Colo. Ct. App. 1997) (holding that the First Amendment

does not permit a court to hold a dentist liable for statements

published in a book or made during a news program, even

when those statements are contrary to the opinion of the

medical establishment). That principle makes sense because

communicating to the public on matters of public concern lies

PICKUP V. BROWN 21

at the core of First Amendment values. See, e.g., Snyder v.

Phelps, 131 S. Ct. 1207, 1215 (2011) (“Speech on matters of

public concern is at the heart of the First Amendment’s

protection.” (internal quotation markets, brackets, and ellipsis

omitted)). Thus, outside the doctor-patient relationship,

doctors are constitutionally equivalent to soapbox orators and

pamphleteers, and their speech receives robust protection

under the First Amendment.

At the midpoint of the continuum, within the confines of

a professional relationship, First Amendment protection of a

professional’s speech is somewhat diminished. For example,

in Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833, 884 (1992), the plurality upheld a

requirement that doctors disclose truthful, nonmisleading

information to patients about certain risks of abortion:

All that is left of petitioners’ argument is

an asserted First Amendment right of a

physician not to provide information about the

risks of abortion, and childbirth, in a manner

mandated by the State. To be sure, the

physician’s First Amendment rights not to

speak are implicated, but only as part of the

practice of medicine, subject to reasonable

licensing and regulation by the State. We see

no constitutional infirmity in the requirement

that the physician provide the information

mandated by the State here.[4]

4

Although the plurality opinion garnered only three votes, four

additional justices would have upheld the challenged law in its entirety.

Casey, 505 U.S. at 944 (Rehnquist, C.J., concurring in the judgment in

22 PICKUP V. BROWN

(Citations omitted; emphasis added.) Outside the

professional relationship, such a requirement would almost

certainly be considered impermissible compelled speech. Cf.

Wooley v. Maynard, 430 U.S. 705, 717 (1977) (holding that

a state could not require a person to display the state motto on

his or her license plate).

Moreover, doctors are routinely held liable for giving

negligent medical advice to their patients, without serious

suggestion that the First Amendment protects their right to

give advice that is not consistent with the accepted standard

of care. A doctor “may not counsel a patient to rely on quack

medicine. The First Amendment would not prohibit the

doctor’s loss of license for doing so.” Conant v. McCaffrey,

No. C 97-00139 WHA, 2000 WL 1281174, at *13 (N.D. Cal.

Sept. 7, 2000) (order) (unpublished); see also Shea v. Bd. of

Med. Exam’rs, 146 Cal. Rptr. 653, 662 (Ct. App. 1978) (“The

state’s obligation and power to protect its citizens by

regulation of the professional conduct of its health

practitioners is well settled. . . . [T]he First Amendment . . .

does not insulate the verbal charlatan from responsibility for

his conduct; nor does it impede the State in the proper

exercise of its regulatory functions.” (citations omitted)); cf.

Post, 2007 U. Ill. L. Rev. at 949 (“[W]hen a physician speaks

to a patient in the course of medical treatment, his opinions

are normally regulated on the theory that they are inseparable

from the practice of medicine.”). And a lawyer may be

disciplined for divulging confidences of his client, even

though such disclosure is pure speech. See, e.g., In re

Isaacson, State Bar Court of California, Case No. 08-O-

10684, 2012 WL 6589666, at *4–5 (Dec. 6, 2012)

part and dissenting in part). Thus, there were seven votes to uphold the

disclosure requirement.

PICKUP V. BROWN 23

(unpublished) (noting prior suspension of bar license for

failure to preserve client confidences). Thus, the First

Amendment tolerates a substantial amount of speech

regulation within the professional-client relationship that it

would not tolerate outside of it. And that toleration makes

sense: When professionals, by means of their state-issued

licenses, form relationships with clients, the purpose of those

relationships is to advance the welfare of the clients, rather

than to contribute to public debate. Cf. Lowe, 472 U.S. at 232

(White, J., concurring) (“One who takes the affairs of a client

personally in hand and purports to exercise judgment on

behalf of the client in the light of the client’s individual needs

and circumstances is properly viewed as engaging in the

practice of a profession.”).

At the other end of the continuum, and where we

conclude that SB 1172 lands, is the regulation of professional

conduct, where the state’s power is great, even though such

regulation may have an incidental effect on speech. See id.

(“Just as offer and acceptance are communications incidental

to the regulable transaction called a contract, the

professional’s speech is incidental to the conduct of the

profession.”). Most, if not all, medical treatment requires

speech, but that fact does not give rise to a First Amendment

claim when the state bans a particular treatment. When a

drug is banned, for example, a doctor who treats patients with

that drug does not have a First Amendment right to speak the

words necessary to provide or administer the banned drug.

Cf. Conant, 309 F.3d at 634–35 (noting the government’s

authority to ban prescription of marijuana). Were it

otherwise, then any prohibition of a particular medical

treatment would raise First Amendment concerns because of

its incidental effect on speech. Such an application of the

First Amendment would restrict unduly the states’ power to

24 PICKUP V. BROWN

regulate the medical profession and would be inconsistent

with the principle that “it has never been deemed an

abridgement of freedom of speech or press to make a course

of conduct illegal merely because the conduct was in part

initiated, evidenced, or carried out by means of language,

either spoken, written, or printed.” Giboney, 336 U.S. at 502.

Senate Bill 1172 regulates conduct. It bans a form of

medical treatment for minors; it does nothing to prevent

licensed therapists from discussing the pros and cons of

SOCE with their patients. Senate Bill 1172 merely prohibits

licensed mental health providers from engaging in SOCE

with minors. It is the limited reach of SB 1172 that

distinguishes the present cases from Conant, in which the

government’s policy prohibited speech wholly apart from the

actual provision of treatment. Under its police power,

California has authority to prohibit licensed mental health

providers from administering therapies that the legislature has

deemed harmful and, under Giboney, 336 U.S. at 502, the fact

that speech may be used to carry out those therapies does not

turn the prohibitions of conduct into prohibitions of speech.

In fact, the Welch Plaintiffs concede that the state has the

power to ban aversive types of SOCE. And we reject the

position of the Pickup Plaintiffs—asserted during oral

argument—that even a ban on aversive types of SOCE

requires heightened scrutiny because of the incidental effect

on speech.5 Here, unlike in Conant, 309 F.3d at 639, the law

allows discussions about treatment, recommendations to

5

We do not mean to suggest that any Plaintiff here conducts aversive

SOCE therapy. The record shows that Plaintiffs who are licensed mental

health providers practice SOCE only through talk therapy. We mention

aversive techniques merely to highlight the state’s legitimate power to

regulate professional conduct.

PICKUP V. BROWN 25

obtain treatment, and expressions of opinions about SOCE

and homosexuality.

We further conclude that the First Amendment does not

prevent a state from regulating treatment even when that

treatment is performed through speech alone. As we have

already held in NAAP, talk therapy does not receive special

First Amendment protection merely because it is

administered through speech. 228 F.3d at 1054. That

holding rested on the understanding of talk therapy as “the

treatment of emotional suffering and depression, not speech.”

Id. (internal quotation marks omitted) (first emphasis added).

Thus, under NAAP, to the extent that talk therapy implicates

speech, it stands on the same First Amendment footing as

other forms of medical or mental health treatment. Senate

Bill 1172 is subject to deferential review just as are other

regulations of the practice of medicine.

Our conclusion is consistent with NAAP’s statement that

“communication that occurs during psychoanalysis is entitled

to constitutional protection, but it is not immune from

regulation.” Id. Certainly, under Conant, content- or

viewpoint-based regulation of communication about

treatment must be closely scrutinized. But a regulation of

only treatment itself—whether physical medicine or mental

health treatment—implicates free speech interests only

incidentally, if at all. To read NAAP otherwise would

contradict its holding that talk therapy is not entitled to

“special First Amendment protection,” and it would, in fact,

make talk therapy virtually “immune from regulation.” Id.

Nor does NAAP’s discussion of content and viewpoint

discrimination change our conclusion. There, we used both

a belt and suspenders. In addition to holding that the

26 PICKUP V. BROWN

licensing scheme at issue was a permissible regulation of

conduct, we reasoned that even if California’s licensing

requirements implicated First Amendment interests, the

requirements did not discriminate on the basis of content or

viewpoint. Id. at 1053, 1055–56. But here, SB 1172

regulates only treatment, and nothing in NAAP requires us to

analyze a regulation of treatment in terms of content and

viewpoint discrimination.6

Because SB 1172 regulates only treatment, while leaving

mental health providers free to discuss and recommend, or

recommend against, SOCE, we conclude that any effect it

may have on free speech interests is merely incidental.

Therefore, we hold that SB 1172 is subject to only rational

basis review and must be upheld if it “bear[s] . . . a rational

relationship to a legitimate state interest.”7 Id. at 1049.

According to the statute, SB 1172 advances California’s

interest in “protecting the physical and psychological well-

being of minors, including lesbian, gay, bisexual and

transgender youth, and in protecting its minors against

exposure to serious harms caused by sexual orientation

change efforts.” 2012 Cal. Legis. Serv. ch. 835, § 1(n).

Without a doubt, protecting the well-being of minors is a

legitimate state interest. And we need not decide whether

6

We acknowledge that Plaintiffs ask us to apply strict scrutiny, but they

have not cited any case in which a court has applied strict scrutiny to the

regulation of a medical or mental health treatment. Nor are we aware of

any.

7

The parties dispute whether we are limited to the legislative record in

assessing the constitutionality of SB 1172. We need not resolve that

dispute because, whether or not we restrict our review to the legislative

record, we conclude that the legislature acted rationally.

PICKUP V. BROWN 27

SOCE actually causes “serious harms”; it is enough that it

could “reasonably be conceived to be true by the

governmental decisionmaker.” NAAP, 228 F.3d at 1050

(internal quotation marks omitted).

The record demonstrates that the legislature acted

rationally when it decided to protect the well-being of minors

by prohibiting mental health providers from using SOCE on

persons under 18.8 The legislature relied on the report of the

Task Force of the American Psychological Association,

which concluded that SOCE has not been demonstrated to be

effective and that there have been anecdotal reports of harm,

including depression, suicidal thoughts or actions, and

substance abuse. The legislature also relied on the opinions

of many other professional organizations. Each of those

organizations opposed the use of SOCE, concluding, among

other things, that homosexuality is not an illness and does not

require treatment (American School Counselor Association),

SOCE therapy can provoke guilt and anxiety (American

Academy of Pediatrics), it may be harmful (National

Association of Social Workers), and it may contribute to an

enduring sense of stigma and self-criticism (American

Psychoanalytic Association). Although the legislature also

had before it some evidence that SOCE is safe and effective,

the overwhelming consensus was that SOCE was harmful and

ineffective. On this record, we have no trouble concluding

8

We need not and do not decide whether the legislature would have

acted rationally had it banned SOCE for adults. One could argue that

children under the age of 18 are especially vulnerable with respect to

sexual identity and that their parents’ judgment may be clouded by this

emotionally charged issue as well. The considerations with respect to

adults may be different.

28 PICKUP V. BROWN

that the legislature acted rationally by relying on that

consensus.

Plaintiffs argue that the legislature acted irrationally when

it banned SOCE for minors because there is a lack of

scientifically credible proof of harm. But, under rational

basis review, “[w]e ask only whether there are plausible

reasons for [the legislature’s] action, and if there are, our

inquiry is at an end.” Romero-Ochoa v. Holder, 712 F.3d

1328, 1331 (9th Cir. 2013) (internal quotation marks

omitted).

Therefore, we hold that SB 1172 is rationally related to

the legitimate government interest of protecting the well-

being of minors.9

B. Expressive Association

We also reject the Pickup Plaintiffs’ argument that SB

1172 implicates their right to freedom of association because

the First Amendment protects their “choices to enter into and

maintain the intimate human relationships between

counselors and clients.”10

9

The foregoing discussion relates as well to the Pickup Plaintiffs’ claim

that SB 1172 violates minors’ right to receive information. See Monteiro

v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1027 n.5 (9th Cir. 1998)

(recognizing the “well-established rule that the right to receive

information is an inherent corollary of the rights of free speech and

press”).

10

The Pickup Plaintiffs arguably waived their expressive association

argument by not raising it in the district court. But “the rule of waiver is

a discretionary one.” Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1322

(9th Cir. 2012) (internal quotation marks omitted). We have discretion to

PICKUP V. BROWN 29

First, SB 1172 does not prevent mental health providers

and clients from entering into and maintaining therapeutic

relationships. It prohibits only “practices . . . that seek to

change an individual’s sexual orientation.” Cal. Bus. & Prof.

Code § 865(b)(1). Therapists are free, but not obligated, to

provide therapeutic services, as long as they do not “seek to

change sexual orientation.”

Moreover, the therapist-client relationship is not the type

of relationship that the freedom of association has been held

to protect. The Supreme Court’s decisions “have referred to

constitutionally protected ‘freedom of association’ in two

distinct senses.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617

(1984). The first type of protected association concerns

“intimate human relationships,” which are implicated in

personal decisions about marriage, childbirth, raising

children, cohabiting with relatives, and the like. Id. at

617–19. That type of freedom of association “receives

protection as a fundamental element of personal liberty.” Id.

at 618. The second type protects association “for the purpose

of engaging in those activities protected by the First

Amendment—speech, assembly, petition for the redress of

grievances, and the exercise of religion.” Id. at 618.

Plaintiffs in Pickup claim an infringement of only the first

type of freedom of association.

address an argument that otherwise would be waived “when the issue

presented is purely one of law and either does not depend on the factual

record developed below, or the pertinent record has been fully developed.”

Id. (internal quotation marks omitted). Whether SB 1172 violates the right

to expressive association is such an issue, and we exercise our discretion

to address it.

30 PICKUP V. BROWN

Although we have not specifically addressed the

therapist-client relationship in terms of freedom of

association, we have explained why the therapist-client

relationship is not protected by the Due Process Clause of the

Fourteenth Amendment: “The relationship between a client

and psychoanalyst lasts only as long as the client is willing to

pay the fee. Even if analysts and clients meet regularly and

clients reveal secrets and emotional thoughts to their analysts,

these relationships simply do not rise to the level of a

fundamental right.” NAAP, 228 F.3d at 1050 (internal

quotation marks and citation omitted). Because the type of

associational protection that the Pickup Plaintiffs claim is

rooted in “personal liberty,” U.S. Jaycees, 468 U.S. at 618,

and because we have already determined that the therapist-

client relationship does not “implicate the fundamental rights

associated with . . . close-knit relationships,” NAAP, 228 F.3d

at 1050, we conclude that the freedom of association also

does not encompass the therapist-client relationship.

C. Vagueness

We next hold that SB 1172 is not void for vagueness.

“It is a basic principle of due process that an enactment is

void for vagueness if its prohibitions are not clearly defined.”

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

Nevertheless, “perfect clarity and precise guidance have

never been required even of regulations that restrict

expressive activity.” Ward v. Rock Against Racism, 491 U.S.

781, 794 (1989). “[U]ncertainty at a statute’s margins will

not warrant facial invalidation if it is clear what the statute

proscribes ‘in the vast majority of its intended applications.’”

Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141,

1151 (9th Cir. 2001) (quoting Hill v. Colorado, 530 U.S. 703,

PICKUP V. BROWN 31

733 (2000)). “A defendant is deemed to have fair notice of

an offense if a reasonable person of ordinary intelligence

would understand that his or her conduct is prohibited by the

law in question.” United States v. Weitzenhoff, 35 F.3d 1275,

1289 (9th Cir. 1994) (internal quotation marks omitted). But,

“if the statutory prohibition involves conduct of a select

group of persons having specialized knowledge, and the

challenged phraseology is indigenous to the idiom of that

class, the standard is lowered and a court may uphold a

statute which uses words or phrases having a technical or

other special meaning, well enough known to enable those

within its reach to correctly apply them.” Id. (internal

quotation marks omitted).

Although the Pickup Plaintiffs argue that they cannot

ascertain where the line is between what is prohibited and

what is permitted—for example, they wonder whether the

mere dissemination of information about SOCE would

subject them to discipline—the text of SB 1172 is clear to a

reasonable person. It prohibits “mental health providers”

from engaging in “practices” that “seek to change” a minor

“patient[’s]” sexual orientation. Cal. Bus. & Prof. Code

§§ 865–865.1. A reasonable person would understand the

statute to prohibit only mental health treatment, including

psychotherapy, that aims to alter a minor patient’s sexual

orientation. Although Plaintiffs present various hypothetical

situations to support their vagueness challenge, the Supreme

Court has held that “speculation about possible vagueness in

hypothetical situations not before the Court will not support

a facial attack on a statute when it is surely valid in the vast

majority of its intended applications.” Hill, 530 U.S. at 733

(internal quotation marks omitted).

32 PICKUP V. BROWN

Moreover, considering that SB 1172 regulates licensed

mental health providers, who constitute “a select group of

persons having specialized knowledge,” the standard for

clarity is lower. Weitzenhoff, 35 F.3d at 1289. Indeed, it is

hard to understand how therapists who identify themselves as

SOCE practitioners can credibly argue that they do not

understand what the ban on SOCE prohibits.

Neither is the term “sexual orientation” vague. Its

meaning is clear enough to a reasonable person and should be

even more apparent to mental health providers. In fact,

several provisions in the California Code—though not SB

1172 itself—provide a simple definition: “heterosexuality,

homosexuality, or bisexuality.” Cal. Educ. Code §§ 212.6,

66262.7; Cal. Gov’t Code § 12926®; Cal. Penal Code

§§ 422.56(h), 11410(b)(7). Moreover, courts have repeatedly

rejected vagueness challenges that rest on the term “sexual

orientation.” E.g., United States v. Jenkins, 909 F. Supp. 2d

758, 778–79 (E.D. Ky. 2012); Hyman v. City of Louisville,

132 F. Supp. 2d 528, 546 (W.D. Ky. 2001), vacated on other

grounds, 53 F. App’x 740 (6th Cir. 2002) (unpublished).

D. Overbreadth

We further hold that SB 1172 is not overbroad.11

11

Intervenor Equality California argues that the Pickup Plaintiffs waived

their overbreadth challenge by failing to raise it adequately in the district

court. Although they did not argue overbreadth with specificity, they did

allege it in their complaint and in their memorandum in support of

preliminary injunctive relief. Moreover, whether the statute is overbroad

is a question of law that “does not depend on the factual record developed

below.” Ruiz, 667 F.3d at 1322. Therefore, we exercise our discretion to

address Plaintiffs’ overbreadth challenge.

PICKUP V. BROWN 33

Overbreadth doctrine permits the facial invalidation of

laws that prohibit “a substantial amount of constitutionally

protected speech.” City of Houston v. Hill, 482 U.S. 451, 466

(1987). “[T]he mere fact that one can conceive of some

impermissible applications of a statute is not sufficient to

render it susceptible to an overbreadth challenge.” Members

of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800

(1984). Rather, “particularly where conduct and not merely

speech is involved, . . . the overbreadth of a statute must not

only be real, but substantial as well, judged in relation to the

statute’s plainly legitimate sweep.” Broadrick v. Oklahoma,

413 U.S. 601, 615 (1973).

Senate Bill 1172’s plainly legitimate sweep includes the

prohibition of SOCE techniques such as inducing vomiting or

paralysis, administering electric shocks, and performing

castrations. And, as explained above, it also includes SOCE

techniques carried out solely through words. As with any ban

on a particular medical treatment, there may be an incidental

effect on speech. Any incidental effect, however, is small in

comparison with the “plainly legitimate sweep” of the ban.

Broadrick, 413 U.S. at 615.

Thus, SB 1172 is not overbroad.

E. Parents’ Fundamental Rights

The Pickup Plaintiffs also argue that SB 1172 infringes on

their fundamental parental right to make important medical

decisions for their children. The state does not dispute that

parents have a fundamental right to raise their children as

they see fit, but argues that Plaintiffs “cannot compel the

State to permit licensed mental health [professionals] to

engage in unsafe practices, and cannot dictate the prevailing

34 PICKUP V. BROWN

standard of care in California based on their own views.”

Because Plaintiffs argue for an affirmative right to access

SOCE therapy from licensed mental health providers, the

precise question at issue is whether parents’ fundamental

rights include the right to choose for their children a

particular type of provider for a particular medical or mental

health treatment that the state has deemed harmful. See

Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)

(holding that courts should precisely define purported

substantive due process rights to direct and restrain

exposition of the Due Process Clause).

Parents have a constitutionally protected right to make

decisions regarding the care, custody, and control of their

children, but that right is “not without limitations.” Fields v.

Palmdale Sch. Dist., 427 F.3d 1197, 1204 (9th Cir. 2005).

States may require school attendance and mandatory school

uniforms, and they may impose curfew laws applicable only

to minors. See id. at 1204–05 (collecting cases demonstrating

the “wide variety of state actions that intrude upon the liberty

interest of parents in controlling the upbringing and education

of their children”). In the health arena, states may require the

compulsory vaccination of children (subject to some

exceptions), see Prince v. Massachusetts, 321 U.S. 158, 166

(1944), and states may intervene when a parent refuses

necessary medical care for a child, see Jehovah’s Witnesses

v. King Cnty. Hosp., 278 F. Supp. 488, 504 (W.D. Wash.

1967) (three-judge panel) (per curiam), aff’d, 390 U.S. 598

(1968) (per curiam). “[A] state is not without constitutional

control over parental discretion in dealing with children when

their physical or mental health is jeopardized.” Parham v.

J.R., 442 U.S. 584, 603 (1979).

PICKUP V. BROWN 35

We are unaware of any case that specifically addresses

whether a parent’s fundamental rights encompass the right to

choose for a child a particular type of provider for a particular

treatment that the state has deemed harmful, but courts that

have considered whether patients have the right to choose

specific treatments for themselves have concluded that they

do not. For example, we have held that “substantive due

process rights do not extend to the choice of type of treatment

or of a particular health care provider.” NAAP, 228 F.3d at

1050. Thus, we concluded that “there is no fundamental right

to choose a mental health professional with specific training.”

Id. The Seventh Circuit has also held that “a patient does not

have a constitutional right to obtain a particular type of

treatment or to obtain treatment from a particular provider if

the government has reasonably prohibited that type of

treatment or provider.” Mitchell v. Clayton, 995 F.2d 772,

775 (7th Cir. 1993). Moreover, courts have held that there is

no substantive due process right to obtain drugs that the FDA

has not approved, Carnohan v. United States, 616 F.2d 1120,

1122 (9th Cir. 1980) (per curiam), even when those drugs are

sought by terminally ill cancer patients, see Rutherford v.

United States, 616 F.2d 455, 457 (10th Cir. 1980) (“It is

apparent in the context with which we are here concerned that

the decision by the patient whether to have a treatment or not

is a protected right, but his selection of a particular treatment,

or at least a medication, is within the area of governmental

interest in protecting public health.”). Those cases cut against

recognizing the right that Plaintiffs assert; it would be odd if

parents had a substantive due process right to choose specific

treatments for their children—treatments that reasonably have

been deemed harmful by the state—but not for themselves.

All the more anomalous because the Supreme Court has

recognized that the state has greater power over children than

over adults. Prince, 321 U.S. at 170 (stating that “the power

36 PICKUP V. BROWN

of the state to control the conduct of children reaches beyond

the scope of its authority over adults”).

Further, our decision in Fields counsels against

recognizing the right that Plaintiffs assert. In that case,

parents of school children argued that a school violated their

parental rights when it administered to students a survey that

contained several questions about sex. Fields, 427 F.3d at

1203. We rejected that argument, holding that, although

parents have the right to inform their children about sex when

and as they choose, they do not have the right to “compel

public schools to follow their own idiosyncratic views as to

what information the schools may dispense.” Id. at 1206.

Similarly, here, to recognize the right Plaintiffs assert would

be to compel the California legislature, in shaping its

regulation of mental health providers, to accept Plaintiffs’

personal views of what therapy is safe and effective for

minors. The aforementioned cases lead us to conclude that

the fundamental rights of parents do not include the right to

choose a specific type of provider for a specific medical or

mental health treatment that the state has reasonably deemed

harmful.

Therefore, SB 1172 does not infringe on the fundamental

rights of parents.

CONCLUSION

Senate Bill 1172 survives the constitutional challenges

presented here. Accordingly, the order granting preliminary

relief in Welch, No. 13-15023, is REVERSED, and the order

denying preliminary relief in Pickup, No. 12-17681, is

AFFIRMED. We remand both cases for further proceedings

consistent with this opinion.