Doctors take First Amendment Challenge to US Supreme Court over California’s Implicit Bias Training Mandate

California lawmakers clearly think doctors are a bunch of closet bigots. But should they be allowed to force other physicians to spread that dubious message?

Los Angeles ophthalmologist Azadeh Khatibi and the anti-woke medical group Do No Harm last week asked the United States Supreme Court to hear their First Amendment challenge to the California law that requires doctors teaching continuing medical education classes to include lessons on physicians’ supposed implicit bias.

Last year, the United States Court of Appeals for the Ninth Circuit affirmed a federal judge’s rejection of the lawsuit filed in 2023 by Khatibi and Do No Harm.  The Appeals Court reasoned that the CME courses are government speech and therefore the doctors teaching them enjoy no First Amendment protections.

But the new motion, filed by the Pacific Legal Foundation, argues that the Appeals Court ruling contravenes prior Supreme Court decisions and allowed for the kind of conscripted speech that is clearly prohibited by the First Amendment.

The motion says that the Appeals Court ruling “erases the constitutional boundary between government and private speech, threatens the speech rights of countless professionals, and directly conflicts with this Court’s precedents limiting the government speech doctrine and protecting against compelled speech.”

Pacific Legal Foundation lawyer Joshua Thompson told the California Globe that the Appeals Court used specious reasoning to cast the private speech of doctors giving the CME classes as government speech that the state is entitled to control.

“The Ninth Circuit’s core mistake was treating private speech as government speech simply because the profession is regulated,” he emailed. “The court effectively held that once the State regulates an industry, it can take ownership of what private professionals say within it. That collapses a fundamental First Amendment distinction: regulation of conduct does not transform privately created and delivered expression into the government’s own message.”

“That error directly conflicts with Supreme Court precedent. The Court has repeatedly made clear—most recently in Shurtleff and Tam—that the key question is who is actually speaking and who controls the message, not how heavily the government regulates the field. Here, the State does not write, review, or edit CME content; it outsources accreditation to private entities and leaves instructors in control of what they say.”

Khatibi, who has taught CME courses since 2007, told the California Globe, “I am hopeful and see that [it] is imperative for the Supreme Court to take the case. I know of no doctor that thinks they are listening to state speech” in CME classes.  “To take over the speech of doctors is completely unconstitutional. “

But that is what California did with Assembly Bill 241, which was enacted in 2019 and took effect three years later. It was sponsored by then-Assemblywoman and now Congresswoman Sydney Kamlager-Dove (D-Los Angeles).

The law required that teachers of continuing medical education classes for doctors include lessons on “implicit bias”-meaning telling doctors they are bigots whether they realize it or not.

The courses were required to tell doctors “how implicit bias affects perceptions and treatment decisions of physicians and surgeons, leading to disparities in health outcomes” and include “strategies to address” this supposed subconscious bias. “

California doctors are required to take 50 hours of CME courses every two years to maintain their licenses. The classes are taught by private doctors  but administered by the Medical Board of California, the state agency that licenses doctors.

Stanley Goldfarb, a longtime University of Pennsylvania Medical School professor and founder of Do No Harm,  previously told the California Globe that the notion doctors are biased and their prejudice causes health disparities is a pernicious myth. “There is no good evidence that there is bias,” he said. “It is a dangerous concept. It’s another effort to inject divisiveness into the way that Americans interact with each other. That undermines the trust that physicians need to have with patients.”

In August 2023, Do No Harm sued the Medical Board of California over the CME requirement in the United States District Court for  the Central District of California.

Besides Khatibi, the other doctor plaintiff was Marilyn Singleton, a black anesthesiologist who has since passed away. But her spirited opposition to the CME law is worth quoting here again because it was so eloquent.  In her August 4, 2023 opinion piece for Fox News Singleton wrote that,  “I don’t care that I’m not the target. This [requirement] still represents the kind of racist thinking that was starting to fade 50 years ago. I don’t want to be taught this evil, nor do I want to teach it to others.”

“The law’s authors and advocates think the new racism is justified by health disparities between White and Black patients. These things are real, yet blaming bias for health disparities is the easy way out, since it ignores the host of cultural, economic and other factors that influence patient health.”

She added that “if implicit bias were real, you’d think I would have seen it in 50 years of medical practice. I haven’t, neither in how my peers have treated me nor in how they’ve treated patients of different races. I certainly have never seen a White colleague provide worse care to a Black patient.”

The lawsuit said that the CME law was a clear violation of the First Amendment. “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. Under the First Amendment to the United States Constitution, 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.”

In August 2024, United States District Court Judge for the Central District of California Monica Ramirez Almadani dismissed the lawsuit on the grounds that CME courses are government speech because they were created by the state legislature.

“Plaintiffs voluntarily teach CME courses for credits created and approved by the State, she wrote. “ They are free to teach medical courses in their private capacity in California or elsewhere, but when they are communicating medical knowledge required by the Board to satisfy this State’s licensing requirements, they are conveying what the California Legislature has deemed essential for the continued practice of medicine. “

But in its appeal to the United States Court of Appeals for the Ninth Circuit, the Pacific Legal Foundation argued that the course material is handled by individual doctors so it qualifies as private speech that deserves First Amendment protection.

“All courses taught and organized by Dr. Khatibi were approved by authorized CME providers—not the government—and other than the discussion required by [the law] the content of each course “was created and compiled by her without any supervision, approval, control, or input by any government official.”

But the United States Court of Appeals rejected that argument in its August 2025 ruling upholding the law. The three judge panel found that, “The content of accredited CMEs [was] shaped by the State from their inception.”

The Supreme Court appeal filed by the Pacific Legal Foundation disputes that analysis.

“CME instruction is created by private speakers, delivered in private settings, and developed without State involvement in the substance of what is said. California does not preapprove individual lectures, does not review or edit their content, and delegates accreditation to private entities, retaining only the ability to conduct occasional, after-the-fact audits.”

Pacific Legal Foundation lawyer Caleb Trotter told the California Globe that the Ninth Circuit ruling was also flawed because it assumed that courses taught for license requirements are government speech.

“Simply saying that because courses are taught in the context of professional licensure means the government can compel any content it wants and sweeps in vast amounts of speech for government control,” he emailed. “That result cannot be reconciled with Supreme Court precedent placing careful limits on what counts as the government’s speech.”

Do No Harm founder Stanley Goldfarb said in a telephone interview this week that he hopes the Supreme Court appeal is successful because the implicit bias law is a scam.

“We are going to take this as far as we can.  The other side of this whole business is that they have no evidence that health care disparities are due to bias.”