Key Takeaways:

•         A federal court of appeals determined that the State of Texas, through its veterinarian-client-patient-relationship (VCPR) law, violated a veterinarian’s First Amendment right to freedom of speech when he was penalized for providing patient-specific advice via email without first performing a physical exam.

•       The decision by the court may mean that Texas veterinarians can give professional advice through electronic means, without conducting an initial physical exam, as an exercise of their First Amendment right to free speech. This contradicts current Texas VCPR law.

•         In contrast, Texas law allows physicians to conduct patient visits for babies and non-communicative adults via telehealth.

See below for a more detailed summary.

Case Summary

This is the third time that this case was before the United States Court of Appeals for the 5th Circuit. In Hines I, Dr. Hines lost his case because the appellate court determined that the VCPR law did not regulate speech and therefore did not violate his First Amendment rights. In Hines II, however, case law changed. Regulations affecting occupational speech were now subject to the same scrutiny as non-occupational speech. Accordingly, Dr. Hines revived his lawsuit. His case eventually found its way back to the appellate court where the court reversed and remanded for the district court to decide whether Dr. Hines’ speech was being regulated.

Now in its third iteration, the 5^th Circuit reviewed this case on appeal from Dr. Hines after the district court ruled in favor of the State of Texas (the “State”). The lower court determined that “the [VCPR] law (1) regulates Dr. Hines’s speech, rather than his conduct; (2) does so in a content-neutral way, warranting intermediate scrutiny; and (3) survives intermediate scrutiny because it was “narrowly tailored to the [State’s] substantial interests, which [were] unrelated to the suppression of speech.”[1] Because of the manner in which the parties asked for dismissal of the case, through summary judgment, the appellate court had to look at the lower court’s determinations all over again (i.e., de novo).

The appellate court determined that Dr. Hines’ act of providing patient-specific advice through emails was speech, not conduct and the VCPR law directly regulated his speech as opposed to incidentally through the regulation of his conduct. Specifically, the court looked at “whether the physical-examination requirement primarily affects Dr. Hines’s speech (“communication of a message”) or his conduct by looking at what “trigger[s] coverage under the statute.”[2] Dr. Hines was penalized by the board for his communication with an owner when he made a diagnosis and recommended a treatment plan, not for the substance of the diagnosis or treatment plan or for reviewing charts or different medical reports. Therefore, the court determined that the VCPR law primarily, not incidentally, regulated his speech.

Furthermore, the court determined that the VCPR law regulated Dr. Hines’ speech in a content-neutral way, warranting intermediate scrutiny, the lowest tier of scrutiny the State had to clear. According to the court, it was unable to do so. Why? To survive intermediate scrutiny, a restriction on speech must be narrowly tailored to serve a significant governmental interest.

The court found that while the State had legitimate interests in protecting animal welfare, “the State [] failed to show that the alleged harms to animal welfare in the context of the physical-examination requirement [were] real.”[3] The court pointed out that there were “no published reports of veterinarians providing inadequate or substandard care via virtual care” nor had there been such reports of Dr. Hines doing so.

Even if the harms were real, the court pointed out that the VCPR law actually allows for a VCPR to be established without a physical exam as the veterinarian can establish knowledge of an animal…” if the veterinarian has recently seen, or is personally acquainted with, the keeping and care of the animal by: (1) examining the animal; or (2) making medically appropriate and timely visits to the premises on which the animal is kept.”[4] While the underlined language contemplates visits to herd animals, there is no explicit prohibition on small animal (e.g., dogs and cats) home visits.

Finally, the court determined that the VCPR law did not survive intermediate scrutiny because it was not tailored to the State’s specific interest. Specifically, the court noted that the State failed to provide alternatives or less restrictive means to narrowly tailor the VCPR law. However, the court reviewed alternatives that Dr. Hines proposed including:

1. Instruct[ing] veterinarians not to give veterinary advice without a physical exam if, in the speaker’s professional judgment, he or she cannot provide useful help,
2. requiring “a trip to the veterinarian only when reasonable under the circumstances,” or
3. requiring consent from owners before performing telemedicine without a physical exam.

Ultimately, the appellate court found in Dr. Hines’ favor and was apt to point out the stark difference between human medicine and veterinary medicine, asking why animal welfare would be held in higher regard than human welfare, especially since pets are considered property in the State of Texas. This may not be the “tail end” for the Hines case as the State could appeal, but for now the court has determined that the VCPR law in Texas violates a veterinarian’s speech in particular circumstances when it comes to pet-telehealth.

For further discussion, contact Dr. Priscilla Bowens, DVM, MPH, JD, at priscilla.bowens@agbowenslaw.com.

[1] Hines v. Pardue, No. 23-40483, at *7 (5^th Cir. Sept. 26, 2024).

[2] Id. at *12 (emphasis added).

[3] Id. at *18.

[4] TEX. OCC. CODE § 801.351(a)(2) (emphasis added).