In an 8-1 decision last week, the Supreme Court struck down a Colorado law that prohibited so-called conversion therapy aimed at changing the gender expression or sexual orientation of minors. The court saw itself as intervening to protect therapists from government bias on an issue that has stirred up the culture wars. But it has also substantially weakened the government’s capacity to regulate professional conduct that is accomplished by speech. And it has opened the door to future challenges to all kinds of professional regulation.

The majority opinion, by Justice Neil Gorsuch, says the law regulated the content of the therapist’s speech and discriminated based on viewpoint by allowing the therapist to affirm but not negate patients’ feelings about gender and sexual orientation. The court expresses its worry that Colorado was barring conversion therapy for effectively political reasons. It notes that medical opinions about hot-button topics like sexuality have changed over time, warning that if the state’s ban were allowed to stand, “any professional speech that deviates from current beliefs about the safety and efficacy of various medical treatments could be silenced with relative ease.”

It’s true, of course, that medical science is not insulated from normative values and political judgments. No science is. In her dissent, Justice Ketanji Brown Jackson insists that “professional medical speech does not intersect with the marketplace of ideas.” That isn’t quite true, as any honest analysis of the history and sociology of medicine (or indeed of science in general) would reveal. It’s understandable that the court would want to preserve practitioners’ freedoms from shifting political winds.

But Jackson is right that there’s still something worrisome about the court questioning the legal legitimacy of scientific consensus that is enacted as regulation. States must be able to prohibit outdated medical practices that today are understood to cause more harm than good. They need to be able to converge on uniform standards of medical care, even as we acknowledge that real-world medical consensus isn’t insulated from the realm of ideas or of politics.

Gorsuch’s answer would certainly be that talk therapy, unlike other forms of medical treatment, is accomplished through speech and therefore deserves First Amendment protection. But the almost accidental fact that talk therapy is accomplished through words doesn’t provide a very strong reason to exempt it from being reviewed for its conformity to what medical science currently believes is the best way to treat people.

Although the court didn’t say so, it’s tempting to wonder whether the justices privately suspect talk therapy isn’t medicine at all. The proliferation of coaches who perform effectively the same job as licensed therapists without themselves being licensed might lend some credence to this view. The history of talk therapy in the US up until now is, in large part, a history of constantly increasing medicalization, legalization and regulation. It is conceivable that the conversion therapy opinion represents an inflection point and that in the future, restrictions on talk therapy may be relaxed by judicial fiat.

The part of the opinion focusing on the content of the law rather than whether it discriminates on the basis of viewpoint represents a more significant doctrinal innovation. According to Colorado, the law banning conversion therapy wasn’t aimed at speech but at conduct, namely the course of treatment licensed by the state and known as therapy. By rejecting that argument and holding that the therapy counted as First Amendment-protected speech because it was accomplished through words, the court essentially guarantees that other kinds of professional conduct will also be challenged.

Consider a law that prohibits financial professionals from recommending certain products to their clients because of potential conflict of interest. That law directly regulates speech, according to the court’s new holding. It could therefore be struck down unless the Supreme Court deemed that it fell within categories of expression that have historically been allowed to be restricted, such as fraud, defamation and fighting words.

It’s not at all clear that a law regulating potential conflict of interest is the same as a law prohibiting fraud. If I were a financial professional, I’d be thinking about the possibilities of bringing First Amendment challenges to any non-fraud-based restrictions on what I say as part of my job.

The bigger takeaway of the court’s holding is that it will now be much harder for the government to regulate any form of talking — or to require disclosures that go beyond simple statements of fact. Surgeon General’s warnings are a good example. They compel manufacturers and sellers to include messages that they would prefer not to include on products. They probably don’t fall into a category of historically permitted speech regulation. So under the court’s new line of doctrine, they probably need to satisfy the highest level of constitutional scrutiny.

Under that test, the government must show that it has a compelling interest in requiring the speech and that the speech is narrowly tailored to fit its objective. In practice, in the First Amendment context, this test is almost never satisfied.

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This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

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