By Ben Solis
Gongwer News Service
Attorney General Dana Nessel said recently she’s opposed to a federal lawsuit challenging the state’s ban on conversion therapy, and that the plaintiffs lack a strong likelihood of success on the merits due to a lack of standing, court records show.
Nessel filed an amicus brief saying as much in Catholic Charities of Jackson, Lenawee and Hillsdale Counties v. Whitmer (USWDM Docket No. 24-00718), which further argued that the First Amendment does not protect a therapist’s right to provide what she called harmful mental health care.
The plaintiffs in the case assert that the state’s newly enacted ban on conversion therapy for minors is too broad and violates the constitutional rights of counselors. The plaintiffs said they have helped clients change their behavior and feelings around gender identity through “pure ‘talk therapy,’” by addressing underlying trauma.
PA 117 of 2023 and PA 118 of 2023, however, make the counseling illegal by broadly defining conversion therapy that seeks to change an individual’s gender identity or expression and behavior.
The plaintiffs in the suit are Catholic Charities of Jackson, Lenawee and Hillsdale Counties, which is a nonprofit that “carries out the work of the Roman Catholic Church,” and Emily McJones, a Lansing-based therapist who provides evidence-based treatments that is faithful to the teachings of the Catholic Church.
In response, Nessel contended that the plaintiffs lack standing to bring their challenge, as they have failed to demonstrate they will violate the new law and that there was no credible threat of prosecution against the therapist-plaintiffs.
The therapists also lack standing to invoke their patients’ parents’ First Amendment rights and lack standing against Department of Health and Human Services Director Elizabeth Hertel, who was also named in the lawsuit as a defendant.
On the First Amendment issues as a whole, Nessel said the Supreme Court has long since affirmed states’ authority to impose reasonable regulations on health care professionals, and that the new laws regulate the provision of those services, and thereby provider conduct.
“Consistent with States’ power and special responsibility to regulate the medical profession, HB 4616 regulates the conduct of health care professionals by barring the provision of a discredited and harmful course of treatment,” Nessel wrote. “Where a law regulates the conduct of medical professionals, those laws are subject to reduced scrutiny. Contrary to the plaintiffs’ suggestion, the mere fact that conversion therapy involves speaking words does not render HB 4616 a speech regulation.”
Nessel further argued that HB 4616 does not target speech.
“Nevertheless, the plaintiffs contend that talk therapy is protected ‘speech’ in the constitutional sense,” she wrote. “The Eleventh Circuit asserted that, ‘The government cannot regulate speech by relabeling it as conduct.’ True enough. But this law targets and regulates conduct. Simply declaring talk therapy to be First-Amendment-protected speech fails to grapple with the central issues of the case.”
The attorney general said the laws are neutral in terms of general applicability and do no burden the plaintiffs’ free exercise of religion. Nor are the laws unconstitutionally vague, Nessel argued.
Gongwer News Service
Attorney General Dana Nessel said recently she’s opposed to a federal lawsuit challenging the state’s ban on conversion therapy, and that the plaintiffs lack a strong likelihood of success on the merits due to a lack of standing, court records show.
Nessel filed an amicus brief saying as much in Catholic Charities of Jackson, Lenawee and Hillsdale Counties v. Whitmer (USWDM Docket No. 24-00718), which further argued that the First Amendment does not protect a therapist’s right to provide what she called harmful mental health care.
The plaintiffs in the case assert that the state’s newly enacted ban on conversion therapy for minors is too broad and violates the constitutional rights of counselors. The plaintiffs said they have helped clients change their behavior and feelings around gender identity through “pure ‘talk therapy,’” by addressing underlying trauma.
PA 117 of 2023 and PA 118 of 2023, however, make the counseling illegal by broadly defining conversion therapy that seeks to change an individual’s gender identity or expression and behavior.
The plaintiffs in the suit are Catholic Charities of Jackson, Lenawee and Hillsdale Counties, which is a nonprofit that “carries out the work of the Roman Catholic Church,” and Emily McJones, a Lansing-based therapist who provides evidence-based treatments that is faithful to the teachings of the Catholic Church.
In response, Nessel contended that the plaintiffs lack standing to bring their challenge, as they have failed to demonstrate they will violate the new law and that there was no credible threat of prosecution against the therapist-plaintiffs.
The therapists also lack standing to invoke their patients’ parents’ First Amendment rights and lack standing against Department of Health and Human Services Director Elizabeth Hertel, who was also named in the lawsuit as a defendant.
On the First Amendment issues as a whole, Nessel said the Supreme Court has long since affirmed states’ authority to impose reasonable regulations on health care professionals, and that the new laws regulate the provision of those services, and thereby provider conduct.
“Consistent with States’ power and special responsibility to regulate the medical profession, HB 4616 regulates the conduct of health care professionals by barring the provision of a discredited and harmful course of treatment,” Nessel wrote. “Where a law regulates the conduct of medical professionals, those laws are subject to reduced scrutiny. Contrary to the plaintiffs’ suggestion, the mere fact that conversion therapy involves speaking words does not render HB 4616 a speech regulation.”
Nessel further argued that HB 4616 does not target speech.
“Nevertheless, the plaintiffs contend that talk therapy is protected ‘speech’ in the constitutional sense,” she wrote. “The Eleventh Circuit asserted that, ‘The government cannot regulate speech by relabeling it as conduct.’ True enough. But this law targets and regulates conduct. Simply declaring talk therapy to be First-Amendment-protected speech fails to grapple with the central issues of the case.”
The attorney general said the laws are neutral in terms of general applicability and do no burden the plaintiffs’ free exercise of religion. Nor are the laws unconstitutionally vague, Nessel argued.
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