Science
California effort to confront implicit bias among doctors faces 1st Amendment challenge
Los Angeles anesthesiologist Dr. Marilyn Singleton was outraged about a California requirement that every continuing medical education course include training in implicit bias — the ways in which physicians’ unconscious attitudes might contribute to racial and ethnic disparities in healthcare.
Singleton, who is Black and has practiced for 50 years, sees calling doctors out for implicit bias as divisive, and argues that the state cannot legally require her to teach the idea in her continuing education classes. She has sued the Medical Board of California, asserting a constitutional right not to teach something she doesn’t believe.
The way to address healthcare disparities is to target low-income people for better access to care, rather than “shaking your finger” at white doctors and crying “racist,” she said. “I find it an insult to my colleagues to imply that they won’t be a good doctor if a racially divergent patient is in front of them.”
The litigation is part of a national crusade by right-leaning advocacy and legal groups against diversity, equity and inclusion, or DEI, initiatives in healthcare. The resistance is inspired in part by last year’s U.S. Supreme Court ruling barring affirmative action in higher education.
The California lawsuit does not dispute the state’s authority to require implicit-bias training. It questions only whether the state can require all teachers to discuss implicit bias in their continuing medical education courses. The suit’s outcome, however, could influence obligatory 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 from government overreach and abuse.” Its clients include the activist group Do No Harm, founded in 2022 to fight affirmative action in medicine. The two groups have also joined forces to sue the Louisiana medical board and the Tennessee podiatry board 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 Dr. Azadeh Khatibi, argue that the implicit-bias training requirement violates the 1st Amendment rights of doctors who teach continuing medical education courses by requiring them to discuss how unconscious bias based on race, ethnicity, gender identity, sexual orientation, age, socioeconomic status or disability can alter treatment.
“It’s the government saying doctors must say things, and that’s not what our free nation stands for,” said Khatibi, who immigrated to the U.S. from Iran as a child. Unlike Singleton, Khatibi does believe implicit bias can unintentionally result in substandard care. But, she said, “on principle, I don’t believe in the government compelling speech.”
The lawsuit challenges the evidence of implicit bias in healthcare, saying there is no proof that efforts to reduce bias are effective. Interventions have thus far not demonstrated lasting effects, studies have found.
In December, U.S. District Judge Dale S. Fischer 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’ biased attitudes unconsciously contribute to healthcare disparities. It also found that racial and ethnic disparities in healthcare outcomes are “remarkably consistent” across a range of illnesses and persist even after adjusting for socioeconomic differences, whether patients are insured and other factors influencing care.
Black women are three to four times as likely as white women to die of pregnancy-related causes, are often prescribed less pain medication than white patients with the same complaints, and are referred less frequently for advanced cardiovascular procedures, the Legislature found.
It also noted that women treated by female doctors were more likely to survive heart attacks than those treated by men. This month, the Legislature’s Black Caucus unveiled a bill requiring implicit-bias training for all maternal care providers in the state.
Dr. Khama Ennis, who teaches an implicit-bias class for Massachusetts doctors, sees only the best intentions in her fellow physicians. “But we’re also human,” she said in an interview. “And to not acknowledge that we are just as susceptible to bias as anybody else in any other field is unfair to patients.”
Ennis offered an example of her own bias in a training session. Preparing to treat a patient in a hospital emergency room, she noticed a Confederate flag tattoo on his forearm.
“As a Black woman, I had to have a quick chat with myself,” she said. “I needed to ensure that I provided the same standard of care for him that I would for anyone else.”
Ennis’ class meets the requirements of a Massachusetts law that physicians earn two hours of instruction in implicit bias to obtain or renew their licenses, as of 2022.
That same year, California began requiring that all accredited continuing medical education courses involving direct patient care include 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 on an array of topics, and physicians generally teach them.
Teachers may tell students they do not believe implicit bias drives healthcare disparities, Fischer wrote in her December ruling. But the state, which licenses doctors, has the right to decide what must be included in the classes, the judge wrote.
Professionals who elect to teach courses “must communicate the information that the legislature requires medical practitioners to have,” the judge wrote. “When they do so, they do not speak for themselves, but for the state.”
Whether they speak for themselves or for the state is a pivotal question. While the 1st Amendment protects private 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 state government, not the speech of teachers, parents or students, courts have said.
The Pacific Legal Foundation’s amended complaint aims to convince the judge that its clients teach as private citizens with 1st Amendment rights. If the judge again rules otherwise, lead attorney Caleb Trotter said, he plans to appeal the decision to the U.S. Court of Appeals for the 9th Circuit, and, if necessary, the Supreme Court.
“This is not government speech at all,” he said. “It’s private speech, and the 1st Amendment should apply.”
“Plaintiffs are plainly wrong,” lawyers for Rob Bonta, the state attorney general, responded in court papers. “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 the pending litigation.
From 2019 through July 2022, in addition to California and Massachusetts, four states enacted legislation requiring healthcare providers to be trained in implicit bias.
A landmark 2003 Institute of Medicine report, “Unequal Treatment,” found that limited access to care and other socioeconomic differences explain only part of racial and ethnic disparities in treatment outcomes. The expert panel concluded that clinicians’ prejudices could also contribute.
In the two decades since the report’s release, studies have documented that bias does influence clinical care and contribute to racial disparities, a 2022 report said.
But implicit-bias training might have no impact and might even worsen discriminatory care, the report found.
“There’s not really evidence that it works,” Khatibi said. “To me, addressing healthcare disparities is really important because lives are at stake. The question is, how do you want to achieve these ends?”
KFF Health News, formerly known as Kaiser Health News, is a national newsroom that produces in-depth journalism about health issues.
The sun had barely risen over the Pacific Ocean when a small motorboat carrying a team of Indigenous artisans and Mexican biologists dropped anchor in a rocky cove near Bahías de Huatulco.
Mauro Habacuc Avendaño Luis, one of the craftsmen, was the first to wade to shore. With an agility belying his age, he struck out over the boulders exposed by low tide. Crouching on a slippery ledge pounded by surf, he reached inside a crevice between two rocks. There, lodged among the urchins, was a snail with a knobby gray shell the size of a walnut. The sight might not dazzle tourists who travel here to see humpback whales, but for Mr. Avendaño, 85, these drab little mollusks represent a way of life.
Marine snails in the genus Plicopurpura are sacred to the Mixtec people of Pinotepa de Don Luis, a small town in southwestern Oaxaca. Men like Mr. Avendaño have been sustainably “milking” them for radiant purple dye for at least 1,500 years. The color suffuses Mixtec textiles and spiritual beliefs. Called tixinda, it symbolizes fertility and death, as well as mythic ties between lunar cycles, women and the sea.
The future of these traditions — and the fate of the snails — are uncertain. The mollusks are subject to intense poaching pressure despite federal protections intended to protect them. Fishermen break them (and the other mollusks they eat) open and sell the meat to local restaurants. Tourists who comb the beaches pluck snails off the rocks and toss them aside.
A severe earthquake in 2020 thrust formerly submerged parts of their habitat above sea level, fatally tossing other mollusks in the snail’s food web to the air, and making once inaccessible places more available to poachers.
Decades ago, dense clusters of snails the size of doorknobs were easy to find, according to Mr. Avendaño. “Full of snails,” he said, sweeping a calloused, violet-stained hand across the coves. Now, most of the snails he finds are small, just over an inch, and yield only a few milliliters of dye.
new video loaded: This Parrot Has No Beak, But Is at the Top of the Pecking Order
By Meg Felling and Carl Zimmer
April 20, 2026
For months now, menopausal women across the U.S. have been unable to fill prescriptions for the estradiol patch, a long-established and safe hormone treatment. The news media has whipped up a frenzy over this scarcity, warning of a long-lasting nationwide shortage. The problem is real — but the explanations in the media coverage miss the mark. Real solutions depend on an accurate understanding of the causes.
Reporters, pharmaceutical companies and even some doctors have blamed women for causing the shortage, saying they were inspired by a “menopause moment” that has driven unprecedented demand. Such framing does a dangerous disservice to essential health advocacy.
In this narrative, there has been unprecedented demand, and it is explained in part by the Food and Drug Administration’s recent removal of the “black-box warning” from estradiol patches’ packaging. That inaccurate (and, quite frankly, terrifying) label had been required since a 2002 announcement overstated the link between certain menopause hormone treatments and breast cancer. Right-sizing and rewording the warning was long overdue. But the trouble with this narrative is that even after the black-box warning was removed, there has not been unprecedented demand.
Around 40% of menopausal women were prescribed hormone treatments in some form before the 2002 announcement. Use plummeted in its aftermath, dipping to less than 5% in 2020 and just 1.8% in 2024. According to the most recent data, the number has now settled back at the 5% mark. Unprecedented? Hardly. Modest at best.
Nor is estradiol a new or complex drug; the patch formulation has existed for decades, and generic versions are widely manufactured. There is no exotic ingredient, no rare supply chain dependency, no fluke that explains why women are suddenly being told their pharmacy is out of stock month after month.
The story is far more an indictment of the broken insurance industry: market concentration, perverse incentives and the consequences of allowing insurance companies to own the pharmacy benefit managers that effectively control drug access for the majority of users. Three companies — CVS Caremark, Express Scripts and OptumRx — manage 79% of all prescription drug claims in the United States. Those companies are wholly owned subsidiaries of three insurance behemoths: CVS Health, Cigna and UnitedHealth Group, respectively. This means that the same corporation that sells you your insurance plan also decides which drugs get covered, at what price, and whether your pharmacy can stock them. This is called vertical integration. In another era, we might have called it a cartel. The resulting problems are not unique to hormone treatments; they have affected widely used medications including blood thinners, inhalers and antibiotics. When a low-cost generic such as estradiol — a medication with no blockbuster profit margins and no patent protection — runs into friction in this system, the friction is not random. It is structural. Every decision in that chain is filtered through the same corporate profit motive. And when the drug in question is an off-patent estradiol patch that has negligible profit margins because of generic competition but requires logistical investment to keep consistently in stock? The math on “how much does this company care about ensuring access” is not complicated.
Unfortunately, there is little financial incentive to ensure smooth, consistent access. There is, however, significant financial incentive to steer patients toward branded alternatives, or simply to let supply tighten — because the companies aren’t losing much profit if sales of that product dwindle. This is not a conspiracy theory: The Federal Trade Commission noted this dynamic in a report that documented how pharmacy benefit managers’ practices inflate costs, reduce competition and harm patient access, particularly for independent pharmacies and for generic drugs.
Any claim that the estradiol patch shortage is meaningfully caused by more women now demanding hormone treatments is a distraction. It is also misogyny, pure and simple, to imply that the solution to the shortage is for women’s health advocates to dial it down and for women to temper their expectations. The scarcity of estradiol patches is the outcome of a broken system refusing to provide adequate supply.
Meanwhile, there are a few strategies to cope.
- Ask your prescriber about alternatives. Estradiol is available in multiple formulations, including gel, spray, cream, oral tablet, vaginal ring and weekly transdermal patch, which is a different product from the twice-weekly patch and may be more consistently available depending on manufacturer and region.
- Consider an online pharmacy. Many are doing a good job locating and filling these prescriptions from outside the pharmacy benefit manager system.
- Call ahead. Patch shortages are inconsistent across regions and distributors. A call to pharmacies in your area, or a broader geographic radius if you’re able, can locate stock that your regular pharmacy doesn’t have.
- Consider a compounding pharmacy. These sources can sometimes meet needs when commercially manufactured products are inaccessible. The hormones used are the same FDA-regulated bulk ingredients.
Beyond those Band-Aid solutions, more Americans need to fight for systemic change. The FTC report exists because Congress asked for it and committed to legislation that will address at least some of the problems. The FDA took action to change the labeling on estrogen in the face of citizen and medical experts’ pressure; it should do more now to demand transparency from patch manufacturers.
Most importantly, it is on all of us to call out the cracks in the current system. Instead of repeating “there’s a patch shortage” or a “surge in demand,” say that a shockingly small minority of menopausal women still even get hormonal treatments prescribed at all, and three drug companies control the vast majority of claims in this country. Those are the real problems that need real solutions.
Jennifer Weiss-Wolf, the executive director of the Birnbaum Women’s Leadership Center at New York University School of Law, is the author of the forthcoming book “When in Menopause: A User’s Manual & Citizen’s Guide.” Suzanne Gilberg, an obstetrician and gynecologist in Los Angeles, is the author of “Menopause Bootcamp.”
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