A federal lawsuit filed by the Pacific Legal Foundation (PLF) on August 1 argues the state of California is violating the free speech rights of doctors by mandating that they include “implicit bias” training in their continuing medical education (CME) courses.
CME courses are a standard professional development practice that can cover a wide range of topics relating to medical care. The purpose of these courses is to help physicians maintain and grow their knowledge so they can deliver the best quality of care possible. In California, physicians are required to complete at least 50 CME hours every two years in order to keep their license.
The content of a CME course is largely at the discretion of the course provider so long as it’s related to patient care or some other aspect of medicine. However, in 2019 California lawmakers passed a new law called AB 241. According to the law, “[o]n and after January 1, 2022, all continuing medical education courses shall contain curriculum that includes the understanding of implicit bias.” Specifically, CME courses must include “[e]xamples of how implicit bias affects perceptions and treatment decisions of physicians and surgeons, leading to disparities in health outcomes,” or “[s]trategies to address how unintended biases in decisionmaking may contribute to health care disparities by shaping behavior and producing differences in medical treatment along lines of race, ethnicity, gender identity, sexual orientation, age, socioeconomic status, or other characteristics,” or a combination of both.
In short, California is requiring physicians to be lectured on their implicit biases as a condition of renewing their license, and it’s requiring CME providers to deliver these lectures regardless of whether they think the training is necessary or helpful.
“Rather than respect the freedom and judgment of continuing medical education instructors to choose which topics to teach, California law now requires the Medical Board of California to enforce the mandate that all continuing medical education courses include discussion of implicit bias,” PLF writes in their lawsuit. The Medical Guild Board of California is the agency that oversees physician licensing in the state.
“Under the First Amendment to the United States Constitution,” PLF continues, “the government cannot compel speakers to engage in discussions on subjects they prefer to remain silent about. Likewise, the government cannot condition a speaker’s ability to offer courses for credit on the requirement that she espouse the government’s favored view on a controversial topic. This case seeks to vindicate those important constitutional rights.”
Two doctors in particular are named as plaintiffs in the lawsuit, both from Los Angeles. The first, Dr. Azadeh Khatibi, is an ophthalmologist who left Iran with her family as a child after the Iranian Revolution of 1979. She teaches courses on topics such as retinal tumors, glaucoma, and other ocular diseases. The second is Dr. Marilyn M. Singleton, an anesthesiologist and a past president of the Association of American Physicians and Surgeons.
Both doctors take issue with being compelled to include implicit bias training in their courses. Dr. Khatibi is concerned that time taken for implicit bias training will take time away from discussing more important topics in her courses. Dr. Singleton likewise says she would be forced to include information that is not relevant to her chosen topic, wasting valuable training hours on ideas she believes are actually harmful to physicians and patients.
“The implicit bias requirement promotes the inaccurate belief that white individuals are naturally racist,” Singleton said. “This message can be detrimental to medical professionals and their patients as it creates an atmosphere of suspicion and animosity, which goes against the fundamental principle of doing no harm.”
Why Even Proponents of Implicit Bias Training Should Oppose This Law
The debate around implicit bias training is a tricky matter, in part because there’s more than two positions. Some say health disparities have nothing to do with implicit bias. Others agree that implicit bias plays a role, but think lecturing people about it is at best ineffective and at worst counterproductive. The legislators, of course, think that implicit bias is a key part of the problem and that lecturing people about it will help the situation.
If you are in either of the first two camps, it’s clear why you would oppose this legislation. According to those views, implicit bias training simply has no upsides. But even for those in the third category who genuinely believe this training will help, there are still three good reasons to oppose this legislation.
First, it compels doctors to give airtime to ideas they might disagree with, effectively making them mouthpieces for the state. Even if the ideas are genuinely good, that doesn’t justify controlling what doctors say. To give an analogy, I think we could save a lot of lives if doctors were forced to talk about the benefits of a free market in organs. But the ends don’t justify the means, no matter how noble the ends.
The second reason to oppose this legislation has to do with opportunity costs. As the plaintiffs mentioned, time spent talking about implicit biases is time they can’t spend talking about arguably more important things like retinal tumors. Even if implicit bias training is helpful, that doesn’t mean it’s the most helpful thing for improving patient care. There are many topics competing for a scarce amount of time, and it’s by no means obvious which is the most important. As such, shouldn’t we let doctors—the actual experts on the ground—decide what’s most urgent to discuss?
The third reason has to do with the social ramifications of coercion. When contentious laws like this get passed they foster a lot of resentment and social strife, because the topic has now been politicized. Suddenly, instead of peacefully going our separate ways, we’ve created a society of winners and losers, the imposers and the imposed upon. It’s fine and even healthy to have disagreements about medical training, but bringing those into the political realm and insisting on a one-size-fits-all approach is a recipe for constant antagonism.
Fortunately, we don’t all have to think the same way and deliver the same medical training. We can choose to live and let live. Let the doctors who believe in implicit bias training provide it, and let them prove its effectiveness with good results. But by the same token, for the sake of social harmony, let’s allow the doctors who disagree to teach and practice according to their own philosophy.
With this laissez-faire policy in place, people with different philosophies can peacefully coexist, much like people with different religions could peacefully coexist when we finally decided to separate church and state.
Come to think of it, maybe it’s time we had a conversation about separating medicine and state.
This article was adapted from an issue of the FEE Daily email newsletter. Click here to sign up and get free-market news and analysis like this in your inbox every weekday.