Chiles v. Salazar · ¶122

By contrast, NIFLA's actual line marks a real, constitutionally relevant distinction: Restrictions of speech that occur when a State undertakes to regulate the treatments that professionals provide to patients are merely “incidental”; they are materially different from speech restrictions that are not “tied to a [medical] procedure at all.” 585 U. S., at 769–770; cf. Black's Law Dictionary 686 (5th ed. 1979) (defning “incidental” as “[d]epending upon or appertaining to something else as primary,” such as “something incidental to the main purpose”). The latter warrants strict scrutiny since the State is regulating “speech as speech,” while in the former case—where the State is merely restricting speech due to its regulation of medical treatments—heightened scrutiny is not needed. 585 U. S., at 770.

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