Ronald Hines v. Jessica Quillivan

Case: 19-40605 Document: 00515658372 Page: 1 Date Filed: 12/02/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
December 2, 2020
No. 19-40605 Lyle W. Cayce
Clerk
Ronald S. Hines, Doctor of Veterinary Medicine,
Plaintiff—Appellant,
versus
Jessica Quillivan, Doctor of Veterinary Medicine, in
her official capacity as President of the Texas State
Board of Veterinary Medical Examiners; Keith Pardue,
in his official capacity as Vice President of the Texas
State Board of Veterinary Medical Examiners; Sandra
“Lynn” Criner, Doctor of Veterinary Medicine, in her
official capacity as Secretary of the Texas State
Board of Veterinary Medical Examiners; Michael
White, Doctor of Veterinary Medicine, in his official
capacity as a Member of the Texas State Board of
Veterinary Medical Examiners; Samantha Mixon,
Doctor of Veterinary Medicine, in her official
capacity as a Member of the Texas State Board of
Veterinary Medical Examiners; Randall Skaggs,
Doctor of Veterinary Medicine, in his official capacity
as a Member of the Texas State Board of Veterinary
Medical Examiners; Carlos Chacon, in his official
capacity as a Member of the Texas State Board of
Veterinary Medical Examiners; Sue Allen, Licensed
Veterinary Technician, in her official capacity as a
Member of the Texas State Board of Veterinary
Medical Examiners; George Antuna, in his official
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capacity as a Member of the Texas State Board of
Veterinary Medical Examiners,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:18-CV-155
Before Elrod, Southwick, and Haynes, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
Does a veterinarian have a right to engage in telemedicine for a pet he
has not physically examined? The plaintiff claims that right exists. He filed
suit, challenging Texas’s physical-examination requirement for vets, which
prohibits vets from offering individualized advice to pet owners unless the
vet previously examined the animal. In 2015, we rejected the plaintiff’s
claims under the First Amendment and Equal Protection Clause. Now, he
claims that new precedent from the Supreme Court and this circuit dictate a
different result. The plaintiff filed suit again in 2018, re-raising his First
Amendment claims. He also added a new equal-protection claim based on
Texas’s different telemedicine rules for physicians and veterinarians. The
district court rejected the plaintiff’s arguments and granted the defendants’
motion to dismiss. We AFFIRM in part, REVERSE in part, and
REMAND.
FACTUAL AND PROCEDURAL BACKGROUND
Dr. Ronald Hines, a licensed veterinarian in Texas, stopped practicing
what might be called traditional veterinary medicine in 2002 due to his age
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and physical limitations. Soon thereafter, he began using his website to write
articles about pet health. People around the world began emailing Hines for
advice about their own pets. Hines offered individualized advice over email
and phone, and in 2003, he added to his website a flat fee for veterinary
advice.
Under Texas law, the “[p]ractice of veterinary medicine” is
defined as:
(A) the diagnosis, treatment, correction, change,
manipulation, relief, or prevention of animal disease,
deformity, defect, injury, or other physical condition, including
the prescription or administration of a drug, biologic,
anesthetic, apparatus, or other therapeutic or diagnostic
substance or technique;
(B) the representation of an ability and willingness to
perform an act listed in Paragraph (A);
(C) the use of a title, a word, or letters to induce the
belief that a person is legally authorized and qualified to
perform an act listed in Paragraph (A); or
(D) the receipt of compensation for performing an act
listed in Paragraph (A).
TEX. OCC. CODE § 801.002(5). To practice lawfully, the veterinarian must
have “sufficient knowledge of the animal,” which is defined as either having
recently examined the animal or having visited the “premises on which the
animal is kept.” § 801.351(b). “A veterinarian-client-patient relationship
may not be established solely by telephone or electronic means.”
§ 801.351(c). Violations of these limitations are criminal offenses. § 801.504.
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In 2012, the Texas State Board of Veterinary Medical Examiners
investigated Hines and found he had violated state law. The Board ordered
him to cease providing veterinary advice electronically without physically
examining the animal.
In 2013, Hines filed suit against the Board members in the United
States District Court for the Southern District of Texas. He argued that
Texas’s physical-examination requirement violated his First Amendment,
equal-protection, and substantive-due-process rights. The defendants filed a
Rule 12(b)(6) motion to dismiss, which the district court granted in part.
Hines v. Alldredge, No. 1:13-CV-56, 2014 WL 11320417, at *8 (S.D. Tex. Feb.
11, 2014). On appeal, though, this court held that all of Hines’s claims failed
to state a claim. Hines v. Alldredge (Hines I), 783 F.3d 197 (5th Cir. 2015).
Some things have changed since our 2015 opinion. In 2017, Texas
revised statutes applicable to medical doctors, but not veterinarians, and
allowed them to engage in some forms of telemedicine. The law removed
Section 111.004(5), which had required face-to-face consultations to establish
a physician–patient relationship before engaging in any telemedical services.
Act of May 29, 2017, 85th Leg., R.S., ch. 205, § 2, 2017 Tex. Gen. Laws 379,
380. The bill also added a new section to define what a practitioner–patient
relationship looks like in the context of telemedicine. Id. (codified at Tex.
Occ. Code § 111.005).
Then, in 2018, the United States Supreme Court decided National
Institute of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018).
That case dealt with a California law requiring licensed and unlicensed crisis
pregnancy centers to notify women about California’s low-cost services,
including abortions. Id. at 2368. The Ninth Circuit upheld these
requirements as regulations of “professional speech.” Id. at 2371. The
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Supreme Court reversed, holding the notice requirements were
unconstitutional. Id. at 2370.
Hines filed the present suit on October 2, 2018, in the United States
District Court for the Southern District of Texas. Based on the change in
Texas’s telemedicine law, Hines brought a new equal-protection claim.
Reading NIFLA as abrogating the professional-speech doctrine, Hines also
asserts his First Amendment claims anew. The defendants moved for
dismissal on December 14, and the district court granted the motion on June
11, 2019. Hines timely filed a notice of appeal.
DISCUSSION
We review the district court’s dismissal under Rule 12(b)(6) de novo.
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). This case involves two independent issues, one under the First
Amendment and the other under the Equal Protection Clause of the
Fourteenth Amendment. We analyze them separately.
I. First Amendment
Hines admits that unless NIFLA abrogated Hines I, his claims are
foreclosed. The parties ask the court to apply the “mode of analysis” test to
determine whether NIFLA abrogated Hines I. Stokes v. S.W. Airlines, 887
F.3d 199, 204 (5th Cir. 2018). They disagree on how that test should be
applied here.
Under the rule of orderliness, “one panel may not overrule [a prior]
decision, right or wrong” unless there is an intervening change of authority.
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Soc’y of Separationists, Inc. v. Herman, 939 F.2d 1207, 1211 (5th Cir. 1991).
“[W]hen the Supreme Court expressly or implicitly overrules one of our
precedents, we have the authority and obligation to declare and implement
this change in the law.” Stokes, 887 F.3d at 204 (emphasis added) (quotation
marks omitted). One example of such overruling is “when the Supreme
Court disavows the mode of analysis on which our precedent relied.” Id. Put
another way, “Fifth Circuit precedent is implicitly overruled if a subsequent
Supreme Court opinion establishes a rule of law inconsistent with that
precedent.” Gahagan v. U.S. Citizenship & Immigr. Servs., 911 F.3d 298, 302
(5th Cir. 2018) (quotation marks omitted). However, “an intervening
change in the law must be unequivocal, not a mere ‘hint’ of how the
[Supreme] Court might rule in the future.” United States v. Alcantar, 733
F.3d 143, 146 (5th Cir. 2013). “[M]ere illumination of a case is insufficient”
to abrogate our circuit precedent. United States v. Petras, 879 F.3d 155, 164
(5th Cir. 2018). Relatedly, “the determination whether a given precedent
has been abrogated is itself a determination subject to the rule of
orderliness.” Stokes, 887 F.3d at 205.
After oral argument, another panel of this court issued its opinion in
Vizaline, L.L.C. v. Tracy, 949 F.3d 927 (5th Cir. 2020). Hines asserts in a
Rule 28(j) letter that Vizaline resolved whether NIFLA abrogated Hines I.
The defendants respond that Vizaline abrogated Hines I only to the extent it
relied on the professional-speech doctrine, but it left the incidental-burden
doctrine untouched. Id. at 930, 934.
Vizaline addressed a challenge to Mississippi’s licensing of surveyors.
Id. at 928. The court stated that NIFLA “disavowed the notion that
occupational-licensing regulations are exempt from First Amendment
scrutiny.” Id. The Vizaline court then stated in a footnote: “Our decision in
Hines v. Alldredge, 783 F.3d 197, 202 (5th Cir. 2015), adopted the professional
speech doctrine. As explained below, Hines’ reasoning does not survive
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NIFLA.” Id. at 928 n.1. The district court in Vizaline had viewed the
surveyor regulations as restricting conduct rather than speech, and only
incidentally infringing on speech, so the district court said claims about the
regulations were not entitled to any First Amendment scrutiny. Id. at 933.
The Vizaline court disagreed, holding that general licensing regulations are
not automatically immune from First Amendment scrutiny. Id. at 934. Thus,
the court reversed and remanded for the proper conduct-versus-speech
analysis. Id.
In Stokes, we held that circuit precedent was unequivocally abrogated
by Supreme Court precedent. 887 F.3d at 204–05. One party argued,
though, that one of our cases after the Supreme Court’s intervening decision
reaffirmed our earlier caselaw. Id. at 205. We admitted that “the
determination whether a given precedent has been abrogated is itself a
determination subject to the rule of orderliness.” Id. The case relied upon
by the party, though, was unpublished, and regardless did not appear to
reaffirm our prior rule. Id.
Unlike in Stokes, we are presented with a precedential opinion that
held NIFLA abrogated Hines I. As explained in Stokes, we are to follow a
prior panel’s determination of whether a Supreme Court case abrogated one
of our rules. Vizaline, therefore, is our guide.
Bound by Vizaline, we are no longer bound by Hines I. That means
Hines’ First Amendment claims may be entitled to greater judicial scrutiny
than Hines I allowed. The court concluded that “the relevant question is
whether” the state’s “licensing requirements regulate only speech, restrict
speech only incidentally to their regulation of non-expressive professional
conduct, or regulate only non-expressive conduct.” Vizaline, 949 F.3d at
931. Vizaline declined to give an opinion “on whether the Texas regulation
at issue in Hines would have been upheld under the proper conduct-versus-
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speech analysis.” Id. at 934 n.9. As the Vizaline court did, we reverse and
remand for the district court to make the initial evaluation of whether
conduct or speech is being regulated. Id. at 934.
II. Equal Protection
In Hines I, we addressed a slightly different equal-protection question
from the one before us now. Hines’ original claim was predicated on the idea
that the physical-examination requirement treated veterinarians engaging in
telemedicine differently than other veterinarians. Hines, 2014 WL 11320417,
at *5. We rejected this claim, holding:
[T]he requirement that veterinary care be provided only after
the veterinarian has seen the animal is, at a minimum, rational:
it is reasonable to conclude that the quality of care will be
higher, and the risk of misdiagnosis and improper treatment
lower, if the veterinarian physically examines the animal in
question before treating it.
Hines I, 783 F.3d at 203. Hines’ new claim rests on treating medical doctors
differently than veterinarians as to their right to engage in telemedicine. 1
To state a claim for equal protection, “the plaintiff must prove that
similarly situated individuals were treated differently.” Beeler v. Rounsavall,
328 F.3d 813, 816 (5th Cir. 2003) (quoting Bryan v. City of Madison, 213 F.3d
1Texas’s law for medical doctors does not allow all forms of telemedicine. Section
111.005 provides that a practitioner–patient relationship may exist and thus allow
telemedicine services when there is a preexisting relationship, or the practitioner can use
either synchronous or asynchronous audiovisual technology to interact with the patient.
TEX. OCC. CODE § 111.005. Thus, even if Texas had the same telemedicine
requirements for both doctors and veterinarians, Hines would not be allowed to give
individualized advice over non-audiovisual technology like phone or email. The chasm
between medical doctors and veterinarians, therefore, is not quite as wide as Hines
suggests.
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267, 276 (5th Cir. 2000)). Being similarly situated is key. “Because the
clause’s protection reaches only dissimilar treatment among similar people,
if the challenged government action does not appear to classify or distinguish
between two or more relevant persons or groups, then the action does not
deny equal protection of the laws.” Mahone v. Addicks Util. Dist. of Harris
Cnty., 836 F.2d 921, 932 (5th Cir. 1988). On appeal, the State does not
challenge the similarly situated element of the equal-protection claim, and we
will assume without deciding that it is met. Because Hines is not a member
of suspect class, we consider whether the “classification rationally further[s]
a legitimate state interest.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). When
we apply rational basis at the failure-to-state-a-claim stage, we must treat a
legislative classification “as valid ‘if a court is able to hypothesize a legitimate
purpose to support the action.’” Glass v. Paxton, 900 F.3d 233, 245 (5th Cir.
2018) (quoting Mahone, 836 F.2d at 934).
Behind the Equal Protection Clause is the principle that government
action should not be arbitrary. See Vill. of Willowbrook v. Olech, 528 U.S. 562,
564 (2000). Rational-basis review is guided by the principle that we do not
have “a license . . . to judge the wisdom, fairness, or logic of legislative
choices.” Heller v. Doe ex rel. Doe, 509 U.S. 312, 319 (1993) (quoting FCC v.
Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). “When social or economic
legislation is at issue, the Equal Protection Clause allows the States wide
latitude, and the Constitution presumes that even improvident decisions will
eventually be rectified by the democratic processes.” City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (citations omitted).
Accordingly, “[t]he constitutional test for rationality of a legislative
classification, whether the classes be distinguished in the text of the law or in
its administration, is whether any rational decisionmaker could have so
classified.” Stern v. Tarrant Cnty. Hosp. Dist., 778 F.2d 1052, 1056 (5th Cir.
1985).
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Though rational-basis review gives broad discretion to legislatures, it
is not unlimited. The Supreme Court says to presume legislation is valid.
City of Cleburne, 473 U.S. at 440. We have stated that to uphold a state’s
classification, a court need find only “a conceivable rational basis for the
official action.” Reid v. Rolling Fork Pub. Util. Dist., 854 F.2d 751, 754 (5th
Cir. 1988) (emphasis omitted). Notably, however, we have made clear that
“rational” still must be actually rational, not a matter of fiction. St. Joseph
Abbey v. Castille, 712 F.3d 215, 223 (5th Cir. 2013).
We examine our opinion in St. Joseph Abbey closely because it provides
a recent and thorough explanation. There, we considered a district court’s
order enjoining the enforcement of a Louisiana rule that granted funeral
homes the exclusive right to sell caskets. Id. at 217. A group of monks at an
abbey constructed and sold wooden caskets. Id. This practice violated the
state’s rule that only a state-licensed funeral director of a state-licensed
funeral home could sell caskets to people in the state. Id. at 218. The abbey
sued, seeking declaratory and injunctive relief based on theories of
substantive due process and equal protection. Id. at 220. The state argued
that economic protection of the funeral industry was a legitimate state
interest, but after a bench trial, the district court disagreed. Id. Applying
rational-basis review, we affirmed. Id. at 227.
We explained that “although rational basis review places no
affirmative evidentiary burden on the government, plaintiffs may nonetheless
negate a seemingly plausible basis for the law by adducing evidence of
irrationality.” Id. at 223. We compared the state’s offered rationale to the
setting and history of the challenged rule. Id. The state’s first articulated
reason was economic protection of a discrete industry. Id. at 221. We held,
though, that pure economic protectionism is not by itself a legitimate state
interest. Id. at 222–23. A law motivated by protectionism may have a rational
basis, but “naked economic preferences are impermissible to the extent that
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they harm consumers.” Id. at 223 (quoting Greater Hous. Small Taxicab Co.
Owners Ass’n v. City of Hous., 660 F.3d 235, 240 (5th Cir. 2011)).
The state had two additional reasons for the casket rule: consumer
protection and public health and safety. Id. at 223, 226. The state argued
that by controlling who could sell caskets, it could police deceptive sales
tactics and thus protect consumers. Id. at 223. We held that this reasoning
was irrational. The state did not require individuals to be buried in caskets,
and the Federal Trade Commission found no evidence of consumer
deception by third-party casket sellers. Id. at 225. Overall, the structure of
the law revealed a “disconnect between the post hoc hypothesis of consumer
protection and the grant of an exclusive right of sale to funeral homes.” Id.
at 226. As for health and safety, we found the reason disconnected from
reality. Id. The state did not require caskets to be constructed a certain way
nor did the state require funeral directors to have special expertise about
caskets. Id. Accordingly, there was no rational relationship “between public
health and safety and limiting intrastate sales of caskets to funeral
establishments.” Id.
“A hypothetical rationale, even post hoc, cannot be fantasy.” Id. at
223. “[G]reat deference due state economic regulation does not demand
judicial blindness to the history of a challenged rule or the context of its
adoption nor does it require courts to accept nonsensical explanations for
regulation.” Id. at 226. In the end, all that was left of the state’s motivation
was economic protectionism that actually seemed to harm consumers. See
id. at 226–27. Despite “try[ing] as we [were] required to do, we c[ould]
suppose” no rational basis for the challenged law. Id. at 227. We upheld the
district court’s injunction against the state’s actions against the abbey. Id.
We do not read St. Joseph Abbey to hold that a plaintiff alleging an
equal-protection claim is always entitled to present evidence and make it
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beyond the motion-to-dismiss stage. Indeed, such a reading would ignore
that a state is not required “to produce evidence to sustain the rationality of
a statutory classification.” Heller, 509 U.S. at 320. St. Joseph Abbey dealt
with a “purported rational basis that rose to the level of ‘fantasy.’” Glass,
900 F.3d at 245 (quoting St. Joseph Abbey, 712 F.3d at 223). In addition, the
court tried to conceive other potentially rational bases but could not think of
any. St. Joseph Abbey, 712 F.3d at 227. We do not consider St. Joseph Abbey
to have altered how we conduct rational-basis review; instead, it thoroughly
applied that standard of review to an irrational law.
Turning now to the statute before us, we remind ourselves that it was
rational for the state legislature to conclude that an in-person examination of
an animal reduces “the risk of misdiagnosis and improper treatment.” Hines
I, 783 F.3d at 203. Hines contends that Texas’s new telemedicine law shows
our prior conclusion was misguided because Texas now believes expanding
telemedical services for humans will improve overall care. To the extent
Hines is claiming that there is a disparity between care for animals that do not
have access to in-person veterinary care and care for animals that do, that
claim is foreclosed by our prior opinion. We will not consider anew the
rationality of treating veterinarians engaging in telemedicine differently than
veterinarians practicing in person. The new issue is equal protection for the
State’s choice to allow doctors who treat humans to engage in telemedicine
but not doctors who treat animals.
Hines tries to rebut a number of conceivable justifications for
regulating telemedicine differently than televeterinary services. The State
offers several reasons why Texas would treat veterinarians and medical
doctors differently, citing several of the reasons conceived by the district
court. “[H]umans ordinarily can communicate about their own symptoms
with a doctor via electronic means, whereas animals cannot.” Additionally,
“humans typically understand human physiology better than animal
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physiology.” Hines rejects these reasons by identifying inconsistencies such
as the fact that some humans, like infants, are also unable to speak.
A classification may be underinclusive or overinclusive and yet survive
rational-basis review. Harris v. Hahn, 827 F.3d 359, 369 (5th Cir. 2016). The
Constitution does not require perfect policies to achieve a state’s legitimate
interests. Id. “When a legislature has a choice of means, each rationally
related to its legislative purpose, it may constitutionally choose any of them.
Its choice of one does not render the others irrational.” Stern, 778 F.2d at
1056. That Texas has taken a different approach for medical doctors and for
veterinarians is not per se irrational. Id. We find helpful our now-colleague’s
analysis in a Texas Supreme Court opinion:
It is instructive to consider the U.S. Supreme Court’s
first occupational licensing case, from 1889. In Dent v. West
Virginia — which has never been overruled and is still cited
approvingly — the Court upheld a physician-licensing regime,
calling it a way to protect “the general welfare of [the] people”
and “secure them against the consequences of ignorance and
incapacity, as well as of deception and fraud.” But the Court
cautioned that constitutional limits exist. Government is free
to mandate requirements “appropriate to the calling or
profession,” but not those that “have no relation to such
calling or profession.” Why? Because that would “deprive
one of his right to pursue a lawful vocation.” Restrictions must
have a reasonable connection to the person’s fitness or
capacity. That explains the High Court’s 1957 ruling in
Schware v. Board of Bar Examiners, the only time the Court has
struck down a licensing restriction under rational-basis review.
In Schware, the Court invalidated New Mexico’s attempt to bar
a Communist Party member from practicing law: “any
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qualification must have a rational connection with the
applicant’s fitness or capacity to practice.”
Patel v. Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69, 110–11 (Tex. 2015)
(Willett, J., concurring) (footnotes omitted). The key is rational connection.
We agree with the State here that it is rational to distinguish between
humans and animals based on the species’ differing capabilities. More to the
point, though, the law’s differentiating between medical doctors and
veterinarians is a logical distinction, unlike the artificial line-drawing of the
casket rule considered in St. Joseph Abbey. Texas’s statutory requirements
for medical doctors are found in Title 3 of the Texas Occupations Code, while
the requirements for veterinarians are in Title 4. The occupations have
different governing boards and rulemaking bodies. They require different
schooling. They treat different subjects, and the treatment sometimes differs
substantially. The professions have their similarities, of course, but in our
inquiry, there are rational reasons to believe regulations suitable for one
profession are not constitutionally required for the other.
One Texas appellate court considered whether the Texas Medical
Liability and Insurance Improvement Act applied to veterinarians. Neasbitt
v. Warren, 22 S.W.3d 107, 108 (Tex. App.—Fort Worth 2000, no pet.). The
defendant in the negligence action, a veterinarian, sought a cost bond under
the medical liability law, which on its face applied only to health care
providers or physicians. Id. Observing the different statutory schemes for
physicians and veterinarians, the court held that the liability law did not apply
to the claim against the veterinarian. Id. at 112. The court stated, “The
reality that physicians and veterinarians have traditionally been licensed and
regulated by entirely separate state boards and under entirely different
statutes provides further support for differentiating between the two
professions.” Id. at 111. We agree with that sentiment.
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Moreover, unlike the challenged law in St. Joseph Abbey, the physical-
examination requirement for veterinarians is not a protectionist measure
designed to stop veterinarians from competing with medical doctors. See St.
Joseph Abbey, 712 F.3d at 226–27. Indeed, medical services are not an
economic substitute for veterinarian services. That means the services are
not interchangeable. In the antitrust-law context, we could say that the two
services are not part of the same relevant product market, competing against
one another. Apani S.W., Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620, 626
(5th Cir. 2002). Our takeaway is that Texas’s physical-examination
requirement is not a “naked transfer of wealth” from veterinarians to
medical doctors because those two professions are not in competition with
one another to begin with. See St. Joseph Abbey, 712 F.3d at 223. The state-
licensed funeral homes could raise prices on caskets because of the state’s
rule disallowing the abbey from selling caskets in state. See id. at 226. By
contrast, physicians practicing telemedicine are not able to raise prices due
to the regulations on veterinarians’ practice of telemedicine.
It is not irrational for a state to change in stages its licensing laws to
adapt to our new, technology-based economy. If the Texas legislature finds
the recently enacted changes on telemedicine successful, it may decide to
expand those changes to include veterinarians. It is reasonable to have a trial
period rather than to make a hasty policy change. Though we could conceive
no rational basis for the law challenged in St. Joseph Abbey, we can conceive
many rational bases here. The district court properly dismissed Hines’
equal-protection claim.
We AFFIRM in part, REVERSE in part, and REMAND for
further proceedings.
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Jennifer Walker Elrod, Circuit Judge, concurring in part 1 and
dissenting in part:
To prevail at this stage, Dr. Hines must show only that Texas lacks a
rational basis for prohibiting veterinarians from using telemedicine the same
way medical doctors can. Because I believe Dr. Hines has made this showing,
I would reverse the district court’s dismissal of Dr. Hines’s Equal Protection
claim.
Under Texas law, a veterinarian must either examine an animal
directly or visit the premises on which the animal is kept before establishing
a patient relationship. Tex. Occ. Code § 801.351(b). Only after doing one of
those two things may a veterinarian treat an animal via virtual means.
Medical doctors, on the other hand, may form a patient relationship entirely
through virtual means. Dr. Hines contends that Texas’s different and more
burdensome requirement for veterinarians practicing telemedicine compared
to medical doctors practicing telemedicine violates the Fourteenth
Amendment’s guarantee of equal protection of the laws.
The Equal Protection clause forbids the Government from giving
differential treatment to people who are similarly situated, unless the
Government has a rational basis for doing so. See Nordlinger v. Hahn, 505
U.S. 1, 10 (1992); Gibson v. Tex. Dep’t of Ins.—Div. of Workers’ Comp., 700
F.3d 227, 238 (5th Cir. 2012). Here, the only question is whether, accepting
as true all well-pleaded facts in Dr. Hines’s complaint, he has plausibly
alleged that he has been treated differently than other similarly situated
1
I agree with the majority opinion that the case should be remanded to the district
court so that the regulation at issue can be evaluated under National Institute Of Family &
Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) and Vizaline L.L.C. v. Tracy, 949 F.3d 927(5th Cir. 2020).
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individuals and he has plausibly alleged that no rational basis accounts for the
difference. In my view, Dr. Hines has done so and thus, has stated a claim.
The district court concluded that doctors and veterinarians are
similarly situated for the narrow purpose of analyzing the laws that concern
telemedicine. As the district court acknowledged, doctors and veterinarians
belong to different professions. Nevertheless, both groups provide medical
advice to living subjects and the benefits and drawbacks of expanding access
to medical care through telemedicine are the same for both groups.
While the majority opinion purports to assume that doctors and
veterinarians are similarly situated with respect to telemedicine laws, since
this issue was not appealed, the opinion’s analysis places great weight on
differences between the professions that go to the “similarly situated”
element. For instance, the majority opinion notes that the occupations have
different governing boards and rulemaking bodies and that they attend
different types of educational institutions for their training. However, the
district court expressly considered that “doctors and veterinarians are
subject to different licensing boards and are considered separate professions”
when it decided that that the “similarly situated” element was met. The
majority opinion “assumes” this holding but then undercuts it to support the
conclusion that Texas’s telemedicine laws pass rational basis review. I agree
with the magistrate judge and district court that veterinarians and doctors are
similarly situated regarding regulation of their use of telemedicine.
I would further hold that the state has failed to demonstrate a rational
basis for their disparate regulation, at least at this stage of litigation. 2 When
we conduct a rational basis review, legislation is presumed valid, but a
2
The magistrate judge concluded that Texas lacked a rational basis, but the district
court held that Texas did have a rational basis.
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presumption is not a guarantee. See City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 440 (1985); St. Joseph Abbey v. Castille, 712 F.3d 215, 223 (5th
Cir. 2013). “[A]lthough rational basis review places no affirmative
evidentiary burden on the government, plaintiffs may nonetheless negate a
seemingly plausible basis for the law by adducing evidence of irrationality.”
St. Joseph Abbey, 712 F.3d at 223. A “hypothetical rationale, even post hoc,
cannot be fantasy.” Id. When a plaintiff provides a court with undisputed
context that betrays the otherwise rational basis the state has offered, the
state can no longer expect the court’s deference. Rational basis review is a
level of scrutiny, not a rubber-stamping exercise. See Harris Cty. v. CarMax
Auto Superstores Inc., 177 F.3d 306, 323 (5th Cir. 1999) (“[T]he rational basis
test ‘is not a toothless one.’”) (quoting Mathews v. Lucas, 427 U.S. 495, 510
(1976)).
St. Joseph Abbey was a recent and standard application of rational basis
review in action. In that case, an abbey of Benedictine monks who sold
handcrafted caskets challenged the state of Louisiana’s rules that allowed
only state-licensed funeral homes to sell caskets to people in Louisiana. St.
Joseph Abbey, 712 F.3d at 217–18. Louisiana offered three seemingly plausible
bases for the challenged rules: economic protection of the funeral industry,
consumer protection for casket purchasers, and public health and safety for
casket purchasers. As to the first rationale, our court in St. Joseph Abbey ruled
that economic protection of a favored industry is not, on its face, a legitimate
state interest. Id. at 222–23. As to the second and third rationales, both were
seemingly plausible. If all rational basis review required was the offering or
conjecture of a seemingly plausible basis, the court could have stopped there
and dismissed the monks’ claim.
Instead, the court considered the context that the monks put forward,
which negated both of the state’s bases. For instance, regarding “health and
safety,” the monks pointed out that Louisiana did not require caskets for
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burial, did not impose requirements for their construction or design, did not
require a casket to be sealed before burial, and did not require funeral
directors to have any special expertise in caskets. Id. at 223–27. These facts
fatally undermined the logic of Louisiana’s “health and safety” basis for
permitting only funeral homes to sell caskets to in-state customers. 3
St. Joseph Abbey does not mean, as perhaps the majority opinion fears,
that Equal Protection claims can never be dismissed at the 12(b)(6) stage or
that survival of a claim at the 12(b)(6) stage is equivalent to a judgment as a
matter of law in favor of the plaintiff. In cases where the state provides a
rational basis for the challenged law and the plaintiffs are unable to negate the
basis, the case will be dismissed. But where the state provides only a
theoretically plausible rationale and the plaintiff is successful in affirmatively
undermining the logic that makes that basis rational, then the claim can
proceed to an evidentiary stage. In that stage, the state may be able to provide
evidence or better argumentation that rehabilitates their bases for the
challenged law or supports new bases. If the state does so, the Equal
Protection claim later may be dismissed before trial, even though the claim
survived a motion to dismiss.
In this case, like in St. Joseph Abbey, the state has offered several
seemingly plausible bases for its differential treatment of veterinarians and
3
Our precedent contains many more examples of cases where state laws or
regulations have failed rational basis review. See, e.g., Doe v. Plyler, 628 F.2d 448, 458 (5th
Cir. 1980), aff’d 457 U.S. 202 (1982) (holding that a Texas statute that had been applied so
as to deny free public education to children based on their undocumented status violated
the Equal Protection clause, despite the school district’s asserted justifications); Thompson
v. Gallagher, 489 F.2d 443, 449 (5th Cir. 1973) (holding that city ordinance requiring that
any veteran employed by the city have an honorable discharge was not reasonably related
to the city’s interest in maintaining the quality of its work force, in part because it subjected
veterans to standards to which nonveterans were not subjected).
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doctors. However, Dr. Hines has offered context that belies the rationality
of these differences. 4
Texas provided three potential rational bases for the differential
treatment: First, humans’ ability to communicate with their physicians
enables them to receive better telemedical care than animals. Second, humans
are more familiar with human physiology and can describe it to the doctor.
Third, having higher standards for telemedicine for animals is rational
because of the importance of preventing the spread of zoonotic disease,
which can pass to humans.
The magistrate judge concluded that the state’s rationales were
irrational, and aptly explained why in his report and recommendation:
4
The majority believes the holding of Hines v. Alldredge, 783 F.3d 197, 203 (5th Cir.
2015) (Hines I) has a preclusive effect on our rational basis review of the telemedicine
restrictions for veterinarians. Dr. Hines challenged the restriction on Equal Protection
grounds in his 2013 lawsuit, Hines I, on the basis that he was treated irrationally, being a
duly licensed veterinarian but forbidden from providing veterinary advice like his
colleagues who ran brick-and-mortar clinics. The Fifth Circuit rejected the challenge,
concluding: “it is reasonable to conclude that the quality of care will be higher, and the risk
of misdiagnosis and improper treatment lower, if the veterinarian physically examines the
animal in question before treating it.” Hines I, 783 F.3d at 203.
But the situation has since changed. When Dr. Hines brought his initial suit,
doctors and veterinarians were treated similarly with respect to their practice of
telemedicine. In 2017, the Texas legislature revised the statutes applicable to medical
doctors and removed their restriction, allowing medical doctors to establish a doctor-
patient relationship solely through electronic means. Veterinarians, however, remained
subject to the restriction requiring an in-person visit before providing telemedical care. The
2017 revision to statutes regulating medical doctors changes the posture of this case and
the effect of Hines I. In short, the holding of Hines I was based on a premise that is no longer
true: that Texas believes the risks of telemedicine without an initial in-person visit
outweigh the potential benefits of increased access. We are not bound to again uphold the
telemedicine restriction merely because it was upheld previously under different
circumstances.
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If a pediatrician can use telemedicine to treat a three-month old
infant—based upon medical records, the parent’s description
of external symptoms and a visual examination of the child—
the Court cannot adduce why a veterinarian cannot do the
same for a dog, cat, or hamster.
As Dr. Hines argues, “[i]t simply is not rational to allow telemedicine
without a physical examination for babies but deny the same form of
telemedicine for puppies on the ground that puppies cannot speak.” 5 Babies
and other non-communicative adults were intentional beneficiaries of
Texas’s expansion of telemedicine, not the subjects of unwitting
overinclusion. Texas has never shown a preference for animals over humans
that would support requiring higher standards for animals’ medical
treatment. Cf. Strickland v. Medlen, 397 S.W.3d 184, 185 (Tex. 2013)
(Willett, J.) (holding that dog owners could not recover non-economic
damages for loss of companionship under Texas tort law because “[p]ets are
property in the eyes of the law.”).
5
In my view, the magistrate judge’s reasoning is fatal to both the state’s first and
second rationales. The district court disagreed, accepting both. The district court then
considered in greater detail and accepted the state’s third rationale that requiring
veterinarians to physically examine an animal before subsequently treating that animal via
telemedicine can improve human health by suppressing zoonotic disease. However, this
rationale simply is not based in reality, considering that the restriction on telemedicine does
not actually require a veterinarian to inspect an animal for disease during an initial
examination or even, in fact, require an in-person examination of each animal. A
veterinarian can begin a veterinarian-patient relationship with an animal as long as he or
she has visited the premises on which the animal is kept. See Tex. Occ. Code § 801.351(b).
Furthermore, this theoretical rationale is again betrayed by the fact that medical doctors
establishing a doctor-patient relationship are not required to physically examine their
human subjects at all, despite the fact that human-to-human transmission of diseases poses
a far greater risk to human health. If the state’s goal was to reduce diseases affecting
humans, the existing telemedicine restriction on veterinarians would be a fantastical means
of achieving it.
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Although the rational basis test is deferential, it does not require us to
accept “nonsensical explanations for regulation.” St. Joseph Abbey, 712 F.3d
at 226. The magistrate judge correctly concluded that Texas’s explanations
are indeed nonsensical. I therefore respectfully dissent.
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