Los Angeles anesthesiologist Marilyn Singleton was outraged by California’s requirement that every continuing medical education course include training on implicit biases—the ways in which doctors’ unconscious attitudes can contribute to racial and ethnic disparities in health care.
Singleton, who is black and has practiced for 50 years, sees calling out doctors for implicit bias as dissent and argues that the state cannot legally require her to teach the idea in her continuing education classes. She sued the Medical Board of California, asserting her constitutional right not to teach something she did not believe.
The way to address health care disparities is to target low-income people for better access to care, instead of “wagging the finger” at white doctors and crying “racist,” she said. “I find it insulting to my colleagues to imply that they will not be a good doctor if they have a racially diverse patient in front of them.”
The lawsuit is part of a national crusade by right-wing advocacy and legal groups against diversity, equity and inclusion, or DEI, initiatives in health care. The pushback was inspired in part by last year’s U.S. Supreme Court ruling banning affirmative action in higher education.
The California lawsuit does not challenge the state’s authority to require implicit bias training. The only question is whether the state can require all teachers to discuss implicit bias in their continuing medical education courses. However, the outcome of the case could affect mandatory implicit bias training for all licensed professionals.
Leading the charge is the Pacific Legal Foundation, a Sacramento-based organization that describes itself as “a national public interest law firm that defends Americans against government overreach and abuse.” His clients include the activist group Do No Harm, founded in 2022 to fight affirmative action in medicine. The two groups also joined forces to sue the Louisiana Medical Board and the Tennessee Board of Pediatrics for reserving board seats exclusively for racial minorities.
In their complaint against the California medical board, Singleton and Do No Harm, along with Los Angeles ophthalmologist Azade Khatibi, argued that the implicit bias training requirement violates the First Amendment rights of doctors who teach continuing medical education courses by requires them to discuss how unconscious bias based on race, ethnicity, gender identity, sexual orientation, age, socioeconomic status, or disability may alter treatment.
“The government says doctors have to say things, and our free nation doesn’t protect that,” said Khatibi, who immigrated to the U.S. from Iran as a child. Unlike Singleton, Khatibi believes that implicit bias can inadvertently lead to substandard care. But, she said, “I generally don’t believe in the government’s bombastic speech.”
The lawsuit challenges evidence of implicit bias in health care, saying there is no proof that efforts to reduce the bias are effective. Interventions have so far shown no lasting effects, studies have found.
In December, U.S. District Judge Dale S. Fisher dismissed the suit but allowed the Pacific Legal Foundation to file an amended complaint. A hearing is scheduled for March 11 in federal court in Los Angeles.
In enacting the training requirement, the California Legislature found that physicians’ biases were unwittingly contributing to health care disparities. It also found that racial and ethnic disparities in health care outcomes were “remarkably consistent” across a range of diseases and persisted even after adjusting for socioeconomic differences, whether patients were insured and other factors affecting care.
Black women are three to four times more likely than white women to die from pregnancy-related causes, are often prescribed less pain medication than white patients with the same complaints, and are referred less often for advanced cardiovascular procedures , the legislator found.
In addition, it has been noted that women treated by female doctors are more likely to survive heart attacks than those treated by men. This month, the California Legislature’s Black Caucus unveiled legislation requiring implicit bias training for all maternity care providers in the state.
Hama Ennis, who teaches an implicit bias class for Massachusetts doctors, sees only the best intentions in her fellow doctors. “But we’re also human,” she said in an interview. “And not recognizing that we are just as susceptible to bias as anyone else in any other field is unfair to patients.”
Ennis gave an example of his own bias in training. While preparing to treat a patient in the hospital’s emergency room, she noticed a Confederate flag tattoo on his forearm.
“As a black woman, I had to have a quick talk with myself,” she said. “I had to make sure I provided the same standard of care for him that I would provide for anyone else.”
Ennis’ class meets the requirements of a Massachusetts law that requires doctors to earn two hours of implicit bias training to obtain or renew their licenses starting in 2022.
That same year, California began requiring that all accredited continuing medical education courses involving direct patient care include a discussion of implicit bias. The state mandates 50 hours of continuing education every two years for doctors to maintain their licenses. Private institutions offer courses in a range of subjects and are usually taught by doctors.
Teachers can tell students they don’t believe implicit biases lead to health care disparities, Fischer wrote in his December ruling. But the state that licenses doctors has the right to decide what should be included in the hours, the judge wrote.
Professionals who choose to teach courses “must communicate the information that the legislature requires of medical practitioners,” the judge wrote. “When they do that, they’re not talking about themselves, they’re talking about the country.
Whether they speak for themselves or for the state is a fundamental question. Although the First Amendment protects citizens’ right to free speech, that protection does not extend to government speech. The content of public school curricula, for example, is the speech of the state government, not the speech of teachers, parents or students, courts have argued. In 1988, the US Supreme Court ruled that the First Amendment did not apply to student journalists when a principal censored articles they were writing as part of a school curriculum.
The Pacific Legal Foundation’s amended complaint seeks to convince the judge that its clients are teaching as private citizens with First Amendment rights. If the judge again rules otherwise, lead attorney Caleb Trotter told KFF Health News, he plans to appeal the decision to the U.S. Court of Appeals for the 9th Circuit and, if necessary, to the Supreme Court.
“This is not government speech at all,” he said. “This is private speech and the First Amendment must apply.”
“The plaintiffs are clearly wrong,” attorneys for Rob Bonta, the state’s attorney general, responded in court filings. “There can be no dispute that the State shapes or controls the content of continuing medical education courses.”
The medical board declined to comment on pending litigation.
From 2019 to July 2022, in addition to California and Massachusetts, four states passed legislation requiring health care providers to be trained on implicit bias.
A landmark 2003 Institute of Medicine report, “Unequal Treatment,” found that limited access to care and other socioeconomic differences explained only a portion of racial and ethnic differences in treatment outcomes. The panel concluded that clinician biases may also contribute.
In the two decades since the report was published, studies have documented that bias affects clinical care and contributes to racial disparities, a 2022 report said.
But implicit bias training may have no impact and may even worsen discriminatory concerns, the report found.
“There’s really no evidence that it works,” Khatibi said. “To me, closing health care disparities is really important because lives are at stake. The question is, how do you want to achieve those goals?’
This article was prepared by KFF Health News, which publishes California Healthline, an editorially independent service of the California Health Care Foundation.
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