Does veterinary case point the way to telemedicine's next legal battleground?

By Jonah Comstock
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JONAH_COMSTOCK_HEADSHOTThis week the United States Supreme Court declined to hear a case about veterinary medicine delivered via email. In the case, a 69-year-old veterinarian named Ron Hines is suing the Texas State Board of Veterinary Medical Examiners over a Texas law that makes it illegal for veterinarians to give advice over the internet or telephone without first conducting a physical examination of the animal in person.

On the surface, this case seems like it could be a very relevant precedent for the ongoing legal battle between Teladoc and the Texas state medical board over the fate of telemedicine for humans. But legally, the cases are very different. While Teladoc's is an antitrust case that questions the rule-making authority of the medical board, Hines' case, which has been taken up by the nonprofit Institute for Justice, challenges the law on first amendment grounds. That is, Hines maintains that prohibiting him from emailing veterinary advice is a violation of his right to free speech.

According to the Institute of Justice, the intersection of free speech and government licensing of occupations that involve speech is still ill-defined. The Texas law is based on a fairly weak precedent -- a 1985 nonbinding opinion by three Supreme Court justices that "the First Amendment does not apply to advice in contexts where a client is asking an expert for a professional opinion". But that precedent has never been cited in a binding opinion by the Supreme Court and in 2010, it held that legal advice is protected speech, according to the Institute of Justice.

"Ultimately, Ron’s case, or another like it, will have to go to the Supreme Court to resolve the conflict among the lower courts about whether the First Amendment applies to advice that the government is restricting in the name of occupational licensing," the Institute wrote on its website prior to this week's decision. "For his part, Ron is fighting to defend Internet freedom and is willing to go to the highest court in the land if that is what it takes to ensure that pet owners, and everyone else who uses the internet for advice, are able to exercise their right to free speech."

So while this case isn't directly relevant to the ongoing Teladoc lawsuit with the Texas State Medical Board, it does highlight another legal challenge Teladoc could choose to employ if the antitrust angle doesn't pan out in their favor. And just because the Supreme Court declined to hear the canine version of this case doesn't mean they wouldn't weigh in on a future human version.