NEW ORLEANS – The U.S. Court of Appeals for the Fifth Circuit has decreed that a requirement from the Texas State Board of Veterinary Medical Examiners for those conducting such exams of pets do so in person, does in fact violate the constitutional rights of a telehealth veterinarian.
In a Sept. 26 memorandum opinion written by Fifth Circuit Judge Don R. Willett, alongside colleague judges Cory T. Wilson and Irma Carrillo Ramirez, the trio handed down such an opinion in a case brought by Dr. Ronald S. Hines versus all members of the Texas State Board of Veterinary Medical Examiners.
“Dr. Ronald S. Hines is a retired, physically disabled, Texas-licensed veterinarian who enjoys spending his golden years giving online pet-care advice to animal lovers around the world – often for free. Dr. Hines does not physically examine animals, perform surgeries, apply casts, splints or bandages, administer vaccinations or prescribe prescription medication. He merely sends emails. This would be no problem if the patients were people instead of pets. For humans, Texas law allows telemedicine without first requiring a face-to-face examination to establish a physician-patient relationship. Not so with animals, which require an in-person visit. Exam-free telehealth, turns out, is fine for your Uncle Bernard, but not for your Saint Bernard,” Willett stated.
“No one ever complained about Dr. Hines’s online pet-care advice or alleged that it harmed a single animal. However, because Dr. Hines does not physically examine animals before sharing his expertise, the State of Texas considered some of his emails criminal offenses, going so far as penalizing him with a year of probation, fining him $500 and forcing him to retake the jurisprudence section of the veterinary licensing exam. In 2013, Dr. Hines challenged the physical-examination requirement on First Amendment grounds. Over the last decade, his case has been before our court twice – and now, a third time. After we remanded this case nearly four years ago, the district court granted summary judgment for the State. Dr. Hines appealed.”
After obtaining degrees in veterinary medicine and microbiology, Hines suffered a spinal injury in 1977 which left him disabled. He later retired from active practice in 2002, due to the associated rigors of such practice alongside his physical condition.
Subsequently, Hines created a website where he posted articles about caring for animals, and his readers, both in the United States and around the world, then began to solicit his counsel regarding the medical needs of their pets.
Initially answering his readers’ questions pro bono, Hines later started to charge for his services, but still offered free medical advice to readers in need.
But The Texas State Board of Veterinary Medical Examiners, informed Hines that his website violated state law prohibiting electronic veterinary practice, because he did not see the animals in person.
Hines then put a disclaimer on his website explaining he could not perform medical diagnoses online, but this was not enough to satisfy the Board – which reprimanded Hines, issued him a $500 fine and ordered him to retake the jurisprudence section of the veterinary medicine exam.
Hines then sued the Board in 2013, charging that the state law requirement to see his animal patients in person violated his First Amendment rights. A decade of subsequent litigation in various courts then ensued.
While Hines was not victorious in a lower trial court, a U.S. Supreme Court opinion in National Institute of Family & Life Advocates v. Becerra created a new precedent, and thus, Hines appealed his loss to the Fifth Circuit.
The Fifth Circuit judges found the in-person physical examination requirement in question would not survive “intermediate scrutiny”, leading the panel to rule in Hines’s favor.
“Although the law does not have to be the least restrictive means to pass intermediate scrutiny, it must still be a close fit, and the State must show that it doesn’t ‘regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.’ If Dr. Hines has never actually harmed any animal – and the State provides zero evidence that he has – then the heavy burden on his speech doesn’t advance the State’s interest in animal welfare,” Willett stated.
“A physical-examination requirement may be an efficient and effective way to protect animal welfare by reducing the risk of missed diagnoses, and ‘where certain speech is associated with particular problems, silencing the speech is sometimes the path of least resistance. But by demanding a close fit between ends and means, the tailoring requirement prevents the government from too readily ‘sacrificing speech for efficiency.’ The State has failed to carry its burden of showing the necessary narrow tailoring here.”
Hines was represented by counsel from the Institute for Justice, which issued a statement on the Fifth Circuit’s ruling.
“Dr. Hines’ win is a victory for all Americans who want to seek or give advice online. Dr. Hines may be an elderly veterinarian, but this victory will help secure freedom of speech for the next generation of Americans for whom using the internet to speak with experts will be normal,” Institute for Justice attorney Andrew Ward said.
Hines himself also commented on the ruling.
“I fought this long battle for the next generation of veterinarians, pet owners and animals, especially those around the world who don’t have access to an American vet. I hope my First Amendment victory causes states across the county to respect the free speech rights of their veterinarians,” Hines stated.
U.S. Court of Appeals for the Fifth Circuit case 23-40483
U.S. District Court for the Southern District of Texas case 1:18-cv-00155
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com