Committee recommends SB 1095 but counsel flags possible First Amendment problem with referral ban

A rules committee recommended Senate Bill 1095 as constitutional and in proper form but the measure drew counsel attention because of a provision that would prohibit medical providers from giving referrals for gender-transition procedures.

Tim Fleming, the committee’s rules attorney, said SB 1095 is substantively aligned with prior measures (the transcript notes the bill is identical to House Bill 2085) and that recent Supreme Court consideration of related cases suggested core prohibitions may be constitutionally permissible. However, Fleming said a separate provision that would prevent medical providers from issuing referrals could raise First Amendment concerns because some circuit precedent treats medical recommendations as protected speech.

Fleming told members, "Our flag though for Senate Bill 1095 relates to a provision in the bill that prohibits medical providers from giving a referral to someone for that type of a procedure... we have some case law from the Ninth Circuit that suggests medical recommendations from medical professionals is protected speech, under the First Amendment." He added that other circuits have reached different conclusions and that the issue is not fully settled.

After brief clarification exchanges, the committee voted and recorded five ayes and three nays, recommending the bill as constitutional and in proper form. Fleming offered to provide additional details on the relevant circuit law if members requested more analysis.