Supreme Court Decisions Clarify but Don't Eliminate In-Person VCPR Requirements

The U.S. Supreme Court made two decisions that could have some impact on the in-person requirements for establishing a veterinarian-client-patient relationship (VCPR). In March, it issued a decision in Chiles v. Salazar dealing with First Amendment rights generally, and in April, it denied a petition to review the 5th Circuit Court of Appeals decision in Hines v. Pardue, which dealt with a First Amendment challenge to the VCPR in Texas as applied to a single veterinarian.

These cases, whether taken together or separately, do not eliminate existing VCPR laws and regulations. They address government regulations that impact speech versus government regulations that largely address conduct. They acknowledge that even when a statute generally regulates conduct, it can still violate First Amendment protections for speech “as applied” to an individual’s specific facts and circumstances. In Hines, the in-person VCPR law was found to generally regulate conduct, namely prescribing drugs, using medical devices and other activity. The issue the court addressed focused only on how this law applied to Hines, where it found that the state’s enforcement action over the VCPR was triggered by Hines’ speech, not conduct.

These rulings may cause states to evaluate enforcement actions for various professional codes of conduct to ensure they are triggered by conduct and not by speech. Veterinarians are required to follow state and federal law, especially when it comes to prescribing medications which in most cases require an in-person examination or premises visit. Veterinarians—not telemedicine platforms or other third parties—are the ones legally responsible if these rules are violated. And this isn’t theoretical; complaints related to improper prescribing via telemedicine are already being reviewed by licensing boards.

On March 31, the Supreme Court ruled on Chiles v. Salazar. The case itself had nothing to do with veterinary medicine. Its subject was a Colorado law banning licensed therapists from talking with patients about “conversion therapy” related to sexual orientation or gender identity. The law was found to regulate speech based upon the viewpoint expressed about sexual orientation or gender identity and, accordingly, to violate First Amendment protections as applied to Chiles. The key legal issue was whether the law regulated a licensed professional’s speech (what a professional says) or conduct (what a professional does). In this case, Chiles engaged only in speech (i.e., talk therapy). She did not prescribe medication, use medical devices, or employ any physical methods of treatment. Because the U.S. Supreme Court found that this Colorado law was a content-based regulation of Chiles’ speech that favored a particular viewpoint of which the state approved and prohibited a viewpoint the state did not, it was found to violate the First Amendment.

On April 20, the Supreme Court denied the petition by Texas to review the ruling by the 5th Circuit Court of Appeals, which means that the case is over, the 5th Circuit’s opinion stands, and the case ends after more than a decade of litigation. In its ruling, the 5th Circuit found that Texas’ physical examination requirement associated with the VCPR violated the First Amendment “as applied” to Hines, who did not engage in any conduct, but only speech. Hines provided only veterinary advice, generally through emails and phone calls, to people. The court explained that he did “not physically examine animals, perform surgeries, apply casts, splints, or bandages, administer vaccinations, or prescribe prescription medication.” Under these circumstances, the court stated, the VCPR requirement for a physical exam directly regulated his speech in those emails and phone calls. It then found that Texas’ VCPR requirements were not sufficiently narrow to address a proven concern that would be needed to survive First Amendment scrutiny as applied to this situation. Finally, the court found that it was Hines’ communication that triggered the enforcement action, not his conduct.

These opinions reinforce a critical legal principle: Professional speech receives strong First Amendment protection, and professional conduct has always been regulated by the state. It was critical to each of these decisions that the only activity at issue was speech—talk therapy, emails and phone calls. By contrast, examples of conduct used by the court for which there would be no such First Amendment protection include prescribing drugs, using medical devices and other activity.