The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 25-2090
___________
SHANNON MACDONALD, M.D.; PAUL GARDNER,
M.D., J.A., a minor, by and through guardian and next friend
Michael Abell; MICHAEL ABELL, HANK JENNINGS,
Appellants
v.
PRESIDENT OF THE NEW JERSEY STATE BOARD OF
MEDICAL EXAMINERS
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1:23-cv-23044)
District Judge: Hon. Edward S. Kiel
Argued March 25, 2026
Before: HARDIMAN, SCIRICA, ∗ and AMBRO, Circuit
∗
The Honorable Anthony J. Scirica was unavailable to
participate in the decision in this case after argument before the
Judges
(Filed: August 31, 2026 )
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
This appeal raises important and thorny issues arising
under the First Amendment to the United States Constitution.
New Jersey requires any doctor who wishes to practice
telemedicine with a patient located in the state to first obtain a
license from its Board of Medical Examiners. Three New
Jersey residents and two doctors licensed outside New Jersey
claim that this requirement infringes their free speech rights.
We disagree. And because Plaintiffs’ other constitutional
claims are insubstantial, we will affirm the District Court’s
order dismissing all claims, with one modification.
I
A
On pain of criminal and civil sanction, New Jersey
requires that “[a]ll persons commencing the practice of
medicine or surgery in th[e] State shall apply to the board [of
medical examiners] for a license to do so.” N.J. Stat. Ann.
§§ 45:9-6; 45:1-18.2(b)(2), -25(a); 2C:21-20, 2C:43-3(b)(1), -
merits panel. This opinion is filed by a quorum of the panel
pursuant to 28 U.S.C. § 46(d) and 3d Cir. I.O.P. 12.1(b).
2
6(a)(3). New Jersey defines the practice of medicine to include
“any method,” except those contained in exceptions not
relevant here, “of treatment of human ailment, disease, pain,
injury, deformity, mental or physical condition,” id. § 45:9-5.1,
and “offer[ing] or undertak[ing] by any means or methods to
diagnose, treat, operate or prescribe for any human disease,
pain, injury, deformity or physical condition,” id. § 45:9-18.
The state’s licensure requirement applies to medicine by
virtual modality too: a physician “who uses telemedicine or
engages in telehealth while providing health care services to a
patient” must “be validly licensed, certified, or
registered . . . to provide such services in the State of New
Jersey.” Id. § 45:1-62(b).
Physicians first licensed to practice in New Jersey must,
among other things, pass an examination, complete post-
graduate training, and submit to a background check. See id.
§ 45:9-6; N.J. Admin. Code §§ 13:35-3.1, -3.11A(b), -3.13. A
physician who is already licensed and in good standing in
another state with substantially equivalent licensure standards
need not be reexamined but must submit an application and
associated forms, undergo a background check, and pay
processing fees. N.J. Stat. Ann. § 45:1-7.5; N.J. Admin. Code
§ 13:35-6.13. According to Plaintiffs, the fees amount to $550
and the average processing time is three months. The process
may be expedited for physicians whose state of licensure
participates in the Interstate Medical Licensure Compact.
Rather than fill out the typical application forms, physicians
applying under the Compact can obtain a “letter of
qualification” from their “state of principal license” attesting
eligibility to practice, which the principal state will issue upon
verifying the applicant’s qualifications and conducting a
background check. N.J. Stat. Ann. § 45:9-6.2(5)(b). Plaintiffs
3
aver that the fees for this process are $700 and that it can be
completed in “weeks.” App. 48.
The licensure requirements for out-of-state physicians
seeking to provide telemedicine and telehealth services to
patients in New Jersey allegedly were relaxed during the
COVID-19 pandemic. Those physicians could engage in any
kind of telemedicine without a New Jersey license if they had
a preexisting doctor-patient relationship with the recipient, and
they could undertake COVID-19-specific telemedicine
regardless of whether there was a preexisting relationship. New
Jersey also “waived application fees and allowed qualified
applicants to become licensed within 24 hours of applying”
under a “Temporary Emergency Reciprocity Licensure
program.” App. 53.
B
Shannon MacDonald, M.D., is a radiation oncologist at
Massachusetts General Hospital who specializes in treating
rare pediatric cancers. She lives in Massachusetts and is
licensed to practice medicine there. Dr. MacDonald used
proton therapy to treat her patient J.A. for a rare childhood
cancer when he was 18 months old. J.A. requires annual scans
to monitor for anomalies, as the cancer often recurs. An
anomaly was detected previously when J.A. lived in New
York, and Dr. MacDonald was able to provide a telemedicine
consultation to address the matter. J.A. is now a teenager living
in New Jersey. He and his father, Michael Abell, would like to
consult virtually with Dr. MacDonald in the future if any new
anomalies appear on his annual scans.
Paul Gardner, M.D., is a neurosurgeon at the University
of Pittsburgh Medical Center and an expert in skull base
4
surgery. He lives in Pennsylvania and is licensed there. He too
would like to speak with his patients located in New Jersey to
“discuss treatment options” without requiring them to incur
travel expenses. App. 43. Hank Jennings is a New Jersey
resident who underwent surgery and treatment by specialists in
Pittsburgh when he was nineteen. Like J.A., Jennings needs
periodic follow-up consultations and would like to do them via
telemedicine to mitigate financial and time burdens.
C
Dr. MacDonald, Dr. Gardner, J.A., Abell, and Jennings
filed suit in federal court and sought a permanent injunction
prohibiting New Jersey from enforcing N.J. Stat. Ann. § 45:1-
62(b) to prevent them from consulting by telemedicine. In this
as-applied challenge, Drs. MacDonald and Gardner contend
that New Jersey’s requirement that they undergo the burdens
of New Jersey licensure violates the First Amendment,
dormant Commerce Clause, and Privileges and Immunities
Clause. The patients assert similar First Amendment and
Commerce Clause challenges, and J.A.’s father also contends
that the law violates his substantive due process right to make
decisions about J.A.’s medical care. The District Court rejected
each of these arguments and granted New Jersey’s motion to
dismiss the complaint for failure to state a claim. This timely
appeal followed.
II 1
We begin with Plaintiffs’ strongest contention: that
1
We have jurisdiction under 28 U.S.C. § 1291, and except as
we explain below in our discussion of Article III standing for
Abell’s substantive due process claim, the District Court had
5
New Jersey’s telemedicine law violates their First Amendment
rights to free speech. The threshold question is whether the
challenged law regulates speech. See Veterans Guardian VA
Claim Consulting LLC v. Platkin, 133 F.4th 213, 219 (3d Cir.
2025). It does.
Drs. MacDonald and Gardner would like to use virtual
modalities to “discuss treatment options” with patients, App.
43, and make “specific, nuanced . . . recommendations,” App.
42. The complaint focuses exclusively on the “diagnoses,” and
“expert advice” communicated by these doctors through their
spoken words to their patients. Pls. Br. 11, 25. That advice is
speech. Veterans Guardian, 133 F.4th at 219; see also Chiles
v. Salazar, 146 S. Ct. 1010, 1023 (2026) (“While the First
Amendment protects many and varied forms of expression, the
spoken word is perhaps the quintessential form of protected
speech.”). And the telemedicine law conditions the doctors’
right to engage in that speech on holding a valid New Jersey
license. N.J. Stat. Ann. § 45:1-62(b). Requiring a license to
speak is, of course, a regulation of speech. See, e.g., Riley v.
Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781, 802
(1988); Billups v. City of Charleston, S.C., 961 F.3d 673, 683
(4th Cir. 2020).
Plaintiffs argue that New Jersey lacks good reasons for
this speech restriction, at least as it applies to speech by
specialists with national practices like Drs. MacDonald and
jurisdiction under 28 U.S.C. § 1331. We exercise plenary
review of the District Court’s dismissal order under Rule
12(b)(6) of the Federal Rules of Civil Procedure and view the
factual allegations in the light most favorable to Plaintiffs.
Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.
2010).
6
Gardner. The force of that argument depends on how closely
the First Amendment requires us to scrutinize the law. As we
will explain, New Jersey’s law implicates two strands of the
Supreme Court’s First Amendment jurisprudence that are in
tension. One strand holds that the First Amendment is highly
suspicious of content-based speech restrictions, so courts must
evaluate them under the most demanding form of
constitutional review: strict scrutiny. The other strand holds
that the First Amendment can often accommodate speech
restrictions that are consistent with a long and robust regulatory
tradition. After describing these separate approaches and the
telemedicine law’s place within them, we conclude that strict
scrutiny is inappropriate notwithstanding the law’s content-
based character and that New Jersey’s law passes muster.
A
1
As Plaintiffs rightly note, laws that “target[] speech
based on its communicative content” are usually subject to
strict scrutiny. City of Austin, Texas v. Reagan Nat’l Advert.
of Austin, LLC, 596 U.S. 61, 69 (2022) (citation modified). The
most “egregious form” of content-based laws are those that
discriminate based on a speaker’s viewpoint, i.e., those that
“dictate what particular opinion or perspective individuals may
express on [a] subject.” Chiles, 146 S. Ct. at 1021 (citation
modified). All agree that the New Jersey law is not a
viewpoint-based restriction. But while less inimical to the free
speech right than viewpoint-based laws, a law whose
application turns on “the topic discussed or the idea or message
expressed” still threatens free speech and is normally subject
to strict scrutiny. City of Austin, 596 U.S. at 69 (citation
7
modified).
Here, New Jersey’s telemedicine law is a content-based
restriction because its application turns on the message a
speaker conveys. A license is required before a physician may
engage in speech that is part of the practice of medicine in New
Jersey. See N.J. Stat. Ann. §§ 45:9-6, 45:1-62(b). And New
Jersey’s definition of the practice of medicine covers speech
with specified messages. The definition includes “offer[ing] or
undertak[ing] by any means or methods to diagnose, treat,
operate or prescribe for any human disease, pain, injury,
deformity or physical condition,” N.J. Stat. Ann. § 45:9-18. So
the very messages that Drs. MacDonald and Gardner wish to
convey to their patients, namely diagnoses and recommended
courses of medical treatment, are prohibited without a license.
See, e.g., Pinkus v. MacMahon, 29 A.2d 885, 885–87 (N.J.
1943); State v. Jeannotte-Rodriguez, 261 A.3d 1005, 1021
(N.J. App. Div. 2021).
To be sure, some speech regulations are content-neutral
even though determining whether there has been a violation
requires knowing the content of a speaker’s speech. One
example comes from City of Austin, which involved a
municipal law that restricted signs unless the subject of the
sign’s speech was physically located on the same premises as
the sign. 596 U.S. at 65–66. The Supreme Court held that the
law was content-neutral because it made no distinctions based
on topic, message, idea, or subject matter as such. Id. at 71. No
matter what communicative content a sign displayed, the
restriction applied if the physical location of the sign was on
different premises from the physical location of the thing it
discussed. Id. And the only reason a regulator needed to know
the sign’s content was to make that location-based
determination. Id. True, that law effectively prohibited certain
8
billboard messages, but not because of any communicative
feature of the message itself.
Another example of a content-neutral law that might
require a regulator to know the content of infringing speech is
a prohibition of solicitation. See id. at 72 (discussing Heffron
v. International Soc. for Krishna Consciousness, Inc., 452 U.S.
640 (1981)). Those laws essentially forbid the statement “buy
my wares,” but not because of anything about the content of
that message. The laws take issue with only the speech’s
function and purpose—to solicit. Id.
The Second Circuit invoked this line of cases recently
in Brokamp v. James, 66 F.4th 374 (2d Cir. 2023), where it
held that a licensing law for mental-health counselors was
content-neutral because the law required a license for speech
with certain enumerated “therapeutic purposes” if made in a
particular “context.” Id. at 397. The content of a counselor’s
speech, the court explained, was immaterial: “it matters not at
all whether a counselor speaks to a client about personal
relationships, professional anxieties, medical challenges,
world events, planned travel, hobbies, sports, favorite movies,
or any other subject.” Id. To the extent a regulator would ever
need to examine a speaker’s speech, it would only be to
determine whether the speech was uttered in service of an
enumerated therapeutic purpose. See id.
The New Jersey law here is different because a
speaker’s message is itself the relevant criterion. If Drs.
MacDonald and Gardner convey “diagnoses,” Pls. Br. 11, or
give their “expert advice” to a patient, Pls. Br. 25, the
communicative content of their speech is what places them in
violation of the law. The content is not merely a tool for
ascertaining some other content-neutral criterion like purpose
9
or physical location.
Of course, there are other necessary conditions for a
violation of the telemedicine law, most obviously that the
speaker not be licensed in New Jersey. But that fact does not
alter the content-based nature of the law. Indeed, many if not
most content-based laws have conditions other than speech
content that are necessary for a violation. Take, for example,
“a law banning the use of sound trucks for political speech.”
Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 169 (2015).
Undoubtedly that law is content-based even though speech
with political content is a necessary but not sufficient condition
of a violation. Or take a recently considered law that prohibited
robocalls unless made to collect a debt owed to the United
States. See Barr v. Am. Ass’n of Pol. Consultants, Inc., 591
U.S. 610, 619 (2020) (plurality opinion). That law is content-
based even though the robocall modality is required for a
violation, in addition to non-debt-collection content. See id.;
see also id. at 636–37 (Sotomayor, J., concurring) (agreeing
the law is content based); id. at 639–44 (Breyer, J., with whom
Ginsburg, J. and Kagan, J. join, concurring in part and
dissenting in part) (same); Id. at 650–51 (Gorsuch, J.,
concurring in part and dissenting in part) (same). Or, of
particular relevance here, take laws that restrict speech with
certain content by certain speakers—like a law restricting
political speech by corporations, see Citizens United v. Fed.
Election Comm’n, 558 U.S. 310, 340–41 (2010), or a law
“limiting the content of newspapers,” see Reed, 576 U.S. at 170
(considering that example). Those laws, like New Jersey’s
here, are content-based even though they might also “be
10
characterized as speaker-based.” Id. 2
For these reasons, we hold that New Jersey’s law is
content-based.
2
Before it turns to history and tradition, New Jersey
contends that its telemedicine law implicates exceptions to the
typical rules for content-based laws already recognized in the
caselaw. Its two arguments miss the mark. First, New Jersey
argues that the law is a regulation of professional conduct that
burdens speech only incidentally. See Nat’l Inst. of Fam. & Life
Advocs. v. Becerra, 585 U.S. 755, 769–70 (2018) (NIFLA);
Chiles, 146 S. Ct. at 1025–26. But the state’s argument is
indistinguishable from ones that have been rejected many
times, including recently in Chiles: the state contends that its
licensing scheme limits the practice of medicine as a whole,
and since the practice of medicine is mostly conduct, the law’s
speech limitations are only incidental to its limitations on
conduct. That is not what courts mean when they refer to
“incidental” regulations of speech. That label refers to laws
that “restrict[] speech only because it is integrally related to
unlawful conduct.” Chiles, 146 S. Ct. at 1026 (emphasis
2
Even a law that discriminates against certain speakers without
facially discriminating against any content might still be
considered content-based if the speaker-based distinction
appears to be a proxy for content. See Am. Ass’n of Pol.
Consultants, 591 U.S. at 619–20 (plurality opinion)
(discussing how a court might evaluate a law that prohibited
robocalls by authorized debt collectors).
11
added). 3 It does not refer, as New Jersey suggests, to “a law
[that] mostly addresses conduct and only sometimes sweeps in
speech.” Id. The speech that Drs. MacDonald and Gardner
want to express is not necessarily related to any conduct; they
may well discuss diagnoses with and give medical advice to a
patient located in New Jersey without ever performing physical
treatment on the patient. Cf. NIFLA, 585 U.S. at 770 (holding
that a mandatory notice for clinics was not incident to conduct
because it was “not tied to a procedure at all”). And even if the
speech were incident to some physical treatment by the
doctors, that treatment would not be unlawful conduct because
Drs. MacDonald and Gardner make clear they will only
perform physical treatment in states where they are licensed.
So the speech-incident-to-conduct exception does not apply.
New Jersey’s next argument is more sweeping. It argues
that licensing laws for traditionally regulated professions like
medicine are exempt from any form of heightened scrutiny,
even where the law prohibits unlicensed individuals from
giving professional advice. It invokes, as the District Court did,
our decision in National Association for the Advancement of
Multijurisdiction Practice v. Castille, 799 F.3d 216 (3d Cir.
2015). But the state misreads Castille, and its misreading
would bring that case into conflict with more recent Supreme
Court precedent.
In Castille we asked whether Pennsylvania infringed
the First Amendment rights of lawyers licensed in certain other
states by requiring them to take and pass the Pennsylvania bar
3
The label can also refer to laws that “restrict[] expressive
conduct only for reasons unrelated to its content.” Chiles, 146
S. Ct. at 1026 (emphasis added). But nobody contends that any
expressive conduct is at issue here.
12
exam. Id. at 218. We held that it did not because the bar-exam
requirement neither “pass[ed] judgment on the content” of an
applicant’s speech nor on its time, place, or manner. Id. at 221
(citation omitted). In other words, we held that the bar-exam
requirement did not employ speech-based criteria in restricting
who could practice law in Pennsylvania. Id. That is a different
kind of First Amendment issue than the one raised by the
Plaintiffs here, who dispute the scope of a state’s power to
require a license before speaking. Castille did not discuss
whether there are aspects of legal practice that constitute
speech (of course there are, cf. Veterans Guardian, 133 F.4th
at 219), nor whether a licensure requirement to engage in that
speech is a regulation of speech (of course it is). So Castille
does not bear on the level of scrutiny we must apply here.
In any event, even had we held in Castille that licensure
requirements for the speech aspects of professions always
receive mere rational-basis scrutiny, the Supreme Court’s
intervening decision in NIFLA would require us to revisit it.
NIFLA held that there is no category of speech called
“professional speech” that receives diminished First
Amendment protection. 585 U.S. at 767–68; see also Chiles,
146 S. Ct. at 1024 (reiterating that principle). So we generally
must treat speech uttered in the course of professional practice
the same as any other speech. NIFLA, 585 U.S. at 767–68; see
also Veterans Guardian, 133 F.4th at 220 (“With few
exceptions, the same First Amendment principles apply when
professionals speak to clients as when anyone else talks.”).
And ordinarily, strict scrutiny applies to content-based
restrictions on speech like the one here.
B
Our determination that New Jersey’s law is content-
13
based is not the end of the story, however. The Supreme Court
has consistently instructed that “a long (if heretofore
unrecognized) tradition” of a particular kind of speech
restriction can show that the traditionally restricted speech
warrants “diminished” protection. Chiles, 146 S. Ct. at 1026
(citation modified); see also Houston Cmty. Coll. Sys. v.
Wilson, 595 U.S. 468, 474–75 (2022) (“‘[A] regular course of
practice’ can illuminate or ‘liquidate’ our founding document’s
‘terms and phrases’” (quoting Letter from J. Madison to S.
Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G.
Hunt ed. 1908)).
For example, the First Amendment permits wholesale
proscriptions of certain “exceptional categories” of speech that
“share a long and well-recognized historical pedigree” like
fraud and defamation. Chiles, 146 S. Ct. at 1021; see also Free
Speech Coal., Inc. v. Paxton, 606 U.S. 461, 472–73 (2025)
(summarizing obscenity prohibitions’ historical pedigree).
And even when those categories aren’t implicated, evidence of
a long tradition of a particular kind of speech regulation might
tell a court to relax its guard when evaluating First Amendment
challenges to similar regulations. See Houston Cmty. Coll.
Syst., 595 U.S. at 474–77 (historical use of censures by
assemblies against members for their speech suggested such
censures do not constitute First Amendment retaliation); City
of Austin, 596 U.S. at 75 (tradition of regulating on- and off-
premises signs differently counseled against conclusion that
such distinctions were really content-based regulations); Vidal
v. Elster, 602 U.S. 286, 301 (2024) (collecting cases where the
Supreme Court has “consider[ed] [a restriction’s] history and
tradition”). See also Williams-Yulee v. Fla. Bar, 575 U.S. 433,
462 (2015) (Scalia, J., dissenting) (“Our cases hold that speech
enjoys the full protection of the First Amendment unless a
14
widespread and longstanding tradition ratifies its regulation.”);
Chiles, 146 S. Ct. at 1031 (Kagan, J., concurring) (opining that
“experience and reason alike” might show that content-based
and viewpoint-neutral restrictions on speech in the medical
field do not warrant strict scrutiny)
The Supreme Court’s recent opinion in Vidal v. Elster
is particularly instructive. There, the Court reasoned that the
long history of trademark law—an “inherently content-based”
endeavor, 602 U.S. at 296—showed that it could “play well
with the First Amendment,” id. at 300 (citation modified).
Specifically, the Court upheld the Lanham Act’s prohibition on
including a person’s name in a trademark without the subject’s
permission—a content-based restriction on speech. See id. at
294–95. The Court began by observing that trademark law
existed only in nascent form at the founding and “developed
slowly,” id. at 296, perhaps because a modern trademark
regime would have had little utility in the localized commercial
markets of that period, see id. at 297 (observing that “for most
of our first century, most commerce was local and most
consumers therefore knew the source of the goods they
purchased”); accord id. at 312 (Barrett, J., concurring)
(“American trademark law did not develop in earnest until the
mid-19th century.”).
But from the time trademark law developed in earnest,
the Court explained, it has been little cause for First
Amendment concern, and that “longstanding, harmonious
relationship suggest[ed] that heightened scrutiny need not
always apply” to content-based trademark rules. Id. at 299. The
Court concluded its analysis by canvassing authorities from the
late 19th and early 20th centuries showing that trademark law
has traditionally restricted the ability to trademark names. See
id. at 301–05; see also id. at 311, 323–24 (Barrett, J.,
15
concurring). That tradition, the Court held, was “sufficient to
conclude that the [Lanham Act’s] names clause . . . is
compatible with the First Amendment.” Id. at 301.
Against this backdrop, we consider the history and
tradition of medical licensing. Medical-licensing laws have a
lengthy pedigree in the Anglo-American legal tradition,
appearing in England at least as early as 1518. That year, Henry
VIII granted the Royal College of Physicians a charter to
license those qualified to practice “physick” in London and to
prosecute those who practiced without a license. Jeffrey Lionel
Berlant, Profession and Monopoly: A Study of Medicine in the
United States and Great Britain 134–35 (1975); see also Harold
J. Cook, Policing the Health of London: the College of
Physicians and the Early Stuart Monarchy, 2 Soc. Hist. Med.
No. 1 at 6–7 (April 1989) (tracing the expansion of the
College’s regulatory ambit). An Act of England’s Parliament
confirmed the charter a few years later. See B. Abbott
Goldberg, Horseshoers, Doctors and Judges and the Law on
Medical Competence, 9 Pac. L.J. 107, 122 (1978). See also Dr.
Bonham’s Case, 8 Co. Rep. 107a, 108a–109a, 77 Eng. Rep.
638, 639–41 (C.P. 1610) (describing the charter and statute).
The practice of physicians in England at that time consisted
almost exclusively of speech with specified content: “[a]s
gentlemen,” they “declined to work with their hands and only
observed, speculated, and prescribed.” Paul Starr, The Social
Transformation of American Medicine: The Rise of a
Sovereign Profession and the Making of a Vast Industry 37–38
(1982). Manual tasks were left to surgeons and apothecaries.
Id. So prohibiting the unlicensed practice of “physick” was a
content-based regulation of speech.
Two American colonies—New York and New Jersey—
16
also passed medical licensing laws before the revolution. 4 See
Richard Harrison Shryock, Medical Licensing in America,
1650-1965, at 17 (1967). That was notable given the nascent
state of medical practice and education on this side of the
Atlantic. See Shryock at 3 (“In new communities, there was
often a lack of men with any pretence to medical education.”);
Joseph F. Kett, The Formation of the American Medical
Profession; The Role of Institutions, 1780-1860, 10–12 (1968)
(describing initial efforts in the late 1700s to establish medicine
as a regulated profession). The pace of medical licensing
picked up shortly after the founding, and by the 1830s nearly
all the states in the Union required a license to practice.
Shryock at 23, Kett at 13. Under these laws, one could practice
medicine only after demonstrating competency by passing an
exam or obtaining a qualifying degree. Shryock at 27.
Like their English precursors, the early American laws
regulating medical practice restricted speech. After all,
medicine at the time was heavily speech-based. For example,
diagnoses were often reached only by drawing inferences from
4
An Act to Regulate the Practice of Physick and Surgery in the
City of New York, in Laws of New York, From the 11th Nov.
1752, to 22d May 1762, at 188–89 (1762); An Act to Regulate
the Practice of Physick and Surgery Within the Colony of New
Jersey, in Acts of the General Assembly of the Province of
New Jersey, From the Surrender of the Government to Queen
Anne, on the 17th Day of April, in the Year of our Lord 1702,
to the 14th Day of January 1776, at 376–77 (1776). Other
colonies issued medical licenses as well but those were merely
honorific; the unlicensed could still practice. Joseph F. Kett,
The formation of the American medical profession: The Role
of Institutions, 1780-1860, 7, 12 (1968).
17
a patient’s medical history rather than by physical examination.
See Roy Porter, the Greatest Benefit to Mankind: A Medical
History of Humanity 257–58 (1997); see also David A.
Johnson & Humayun J. Chaudhry, Medical Licensing and
Discipline in America: A History of the Federation of State
Medical Boards 6–8 (2012) (explaining that doctors in early
America performed all medical tasks, including the speech-
based ones that physicians in England would perform). Doctor
and founding father Benjamin Rush advised other doctors:
Begin to interrogate your patient. How long has
he been sick? When attacked and in what
manner? What are the probable causes, former
habits and dress; likewise the diet, etc., . . . Pay
attention to the phraseology of your patients, for
the same ideas are frequently conveyed in
different words. . . . Patients often conceal the
cause of their disease — therefore interrogate
them particularly when you suspect
intemperance as a cause of the disease.
Porter at 257–58. Simply put, conditions on the right to
practice medicine were conditions on the right to speak about
specific content and convey specific messages.
To be sure, these early English and American laws did
not represent enduring consensus on medical licensure. In
London, the scope of the Royal College’s authority was
narrowed by exemptions from licensing for domestic
practitioners, and apothecaries infringed physicians’ monopoly
on medical advice with impunity. See Kett at 3–4; Berlant at
144. In the United States, the founding-era licensing laws were
often weak on their own terms, merely prohibiting unlicensed
practitioners from suing to recover payment. William G.
18
Rothstein, American Physicians in the Nineteenth Century:
From Sects to Science 76 (1972). Unlicensed practitioners
could circumvent that restriction by demanding payment up
front. Lewis A Grossman, Choose Your Medicine: Freedom of
Therapeutic Choice in America 16 (2021). And even the laws
that provided for substantial punishment like fines or
imprisonment were rarely enforced. Rothstein at 76–79. Most
American licensing laws were then repealed altogether during
the Jacksonian era. John Duffy, From Humors to Medical
Science: A History of American Medicine 218 (2d ed. 1993).
This temporary swing in momentum was probably
attributable to various factors. For one, the practice of medicine
was so inadequate (and often harmful) that the American
people were perhaps reluctant to authorize states to declare
who could practice. See Starr at 56, 58. For another, medicine
was still viewed by many as more like religion than science, so
religious-freedom sentiment often colored debates about
licensing. See Grossman at 38–40. Licensure requirements in
general also were inconsistent with the prevailing egalitarian
attitudes of the Jacksonian era. See id. at 32–38. Finally, most
Americans could not afford professional medical services, and
the nature of travel presented serious impediments, so domestic
practitioners were often the only realistic option. Starr at 65–
66.
As medical science and economic conditions improved
and prevailing political attitudes shifted, however, proponents
of licensing regained momentum. See John S. Haller,
American Medicine in Transition, 1840–1910, at ix (1981);
Starr at 69–71; Rothstein at 20–21. Licensing laws reemerged
even before the Civil War—as early as 1859. Johnson and
Chaudhry at 23. The pace picked up after the war: by 1890, 35
states had passed medical-licensing laws. Haller at 223. By
19
1898, all had done so. Shryock at 54–55. Though some initially
suffered similar weaknesses as their founding-era precursors,
by the 1890s the laws were effective at limiting the profession
to the competent and upright. Duffy at 219–20; see also Kett
at vii (explaining that “between 1880 and 1910,” “the
establishment of effective state licensing boards barred quacks
from the profession.”). And in the century-and-a-half since
medical licensing reemerged, the sophistication of medical
knowledge and rigor of licensure conditions have grown in
tandem. See Duffy at 313–14; Kett at 163–64; Rothstein at 20;
Shryock at 67–68.
Throughout our history, providing advice has remained
a core part of medical practice, and licensing schemes have
continued to cover it. See, e.g., People v. Allcutt, 117 A.D. 546,
549, 553 (N.Y. App. Div. 1907) (upholding conviction for
unlicensed practice where defendant did not administer drugs
but purported to diagnose a disease and “prescribe[] diet and
conduct remedies”), aff’d, 81 N.E. 1171 (N.Y. 1907); Pinkus,
29 A.2d at 886 (holding that a food-store owner engaged in
unlicensed medical practice when he “diagnosed alleged
ailments of the witnesses and expressed an opinion as to their
cause”); Norville v. Miss. St. Med. Ass’n, 364 So. 2d 1084,
1089 (Miss. 1978) (chiropractor who “represent[ed] to a
patient” that certain vitamins would “cure a disease or ailment”
engaged in unlicensed practice of medicine); Wong v.
Chappell, 773 S.E.2d 496, 497, 501 (Ga. Ct. App. 2015)
(remanding for jury to determine whether the unlicensed
defendant’s actions constituted the practice of medicine,
defined to include “suggest[ing]” or “recommend[ing]”
20
treatment). 5
The upshot is this: for well over a century, the States
have uniformly required a license to practice medicine,
including when that practice takes the form of speech, and
those licensure laws have always been content-based speech
restrictions.
C
New Jersey’s telemedicine law is a viewpoint-neutral,
content-based speech restriction consistent with the “long (if
heretofore unrecognized) tradition” of state medical-licensing
restrictions just described. Chiles, 146 S. Ct. at 1026 (citation
omitted). No precedent establishes the mode of scrutiny for
such cases.
We acknowledge that precedent does not take strict
scrutiny entirely off the table for laws with strong historical
pedigrees. Cf. New York State Rifle & Pistol Ass’n, Inc. v.
Bruen, 597 U.S. 1, 36 (2022) (“[P]ost-ratification adoption or
acceptance of laws that are inconsistent with the original
meaning of the constitutional text obviously cannot overcome
or alter that text.” (citation omitted)). Here, however, the
history and nature of medical-licensing laws convince us that
5
The parties here don’t dispute that the speech Drs.
MacDonald and Gardner wish to make is within the traditional
scope of the practice of medicine; they dispute only the extent
of New Jersey’s power to limit that kind of speech. Therefore,
we need not and do not wade into the precise scope of what
other speech has traditionally been restricted by medical-
licensing laws.
21
strict scrutiny is inapt.
For starters, we see no reason to conclude that the
original public meaning of the Free Speech Clause requires the
most demanding scrutiny for medical-licensing laws. History
shows that medical licensure predates the founding and has
always been a content-based endeavor. To be sure, the
founding generation was undecided on the wisdom and
permissibility of those laws—widely enacting but rarely
enforcing them. But that suggests, at worst, indeterminacy of
original meaning. So we turn to the robust tradition that has
now existed for well over a century, which strongly suggests
that medical licensure can coexist with the Free Speech Clause.
See Vidal, 602 U.S. at 295; Houston Cmty. Coll. Syst., 595 U.S.
at 474–75.
Moreover, traditional medical-licensing laws do little to
undermine the First Amendment values that precedent tells us
to safeguard. Licensure laws do not “prescribe what shall be
orthodox,” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624,
642 (1943), because they make no viewpoint distinctions, and
among licensed doctors the laws do not even make content
distinctions, see Chiles, 146 S. Ct. at 1028 (distinguishing the
viewpoint-discriminatory law at issue from “licensing laws,”
which “have traditionally addressed what qualifications an
individual must possess before practicing a particular
profession”); NIFLA, 585 U.S. at 772 (extolling the importance
of debate within professions). And by limiting their restrictions
only to speech falling within the bounds of medical practice,
licensing laws do not exclude the unlicensed from the public
marketplace of ideas. See Abrams v. United States, 250 U.S.
616, 630 (1919) (Holmes, J., dissenting). The unlicensed may
still participate in national conversations about medicine even
if they cannot convey medical advice or diagnoses to
22
individual patients.
On the other end of the spectrum from strict scrutiny is
rational-basis review—“the minimum constitutional standard
that all legislation must satisfy.” Free Speech Coal., 606 U.S.
at 471. That standard applies to viewpoint-neutral laws that
restrict wholly proscribable categories of speech like
obscenity. Id. It is unclear whether it also applies in cases
involving speech that has traditionally been subject to lesser
restrictions than total proscription. Compare Vidal, 602 U.S. at
307–08, with id. at 324 (Barrett, J., concurring). In between
strict scrutiny and rational-basis review is intermediate
scrutiny, which asks whether the law “further[s] an important
Government interest unrelated to the suppression of free
expression and do[es] not burden substantially more speech
than necessary to further that interest.” TikTok Inc. v. Garland,
604 U.S. 56, 73–74 (2025). We need not decide which of those
standards is more appropriate here because New Jersey’s
telemedicine law survives even under intermediate scrutiny,
the more demanding of the two.
Plaintiffs do not (and could not) dispute that New
Jersey’s interest in promoting health and safety is important,
and that the state generally furthers that interest, as it
traditionally has, by requiring doctors to demonstrate
competence and good character before practicing medicine.
Nor do they take issue with any of the substantive requirements
(e.g., board certification, satisfaction of a background check)
for obtaining a New Jersey license. They instead argue that the
licensure process is an undue burden on specialists who, like
Drs. MacDonald and Gardner, have national practices and are
already licensed in states with essentially the same substantive
conditions for licensure. The doctors say New Jersey’s
procedures are “duplicative,” Reply Br. 2, 10, 12, of their home
23
state’s licensure process and do very little to protect patient
health because they have been vetted already. Essentially, they
propose that New Jersey treat their home-state licenses as
licenses to give advice to and diagnose New Jersey patients.
The problem with this argument is that the burdens Drs.
MacDonald and Gardner complain about are too “slight” for us
to plausibly conclude that “substantially” more speech is
burdened than if New Jersey simply authorized them to give
advice on account of their home-state license. Bruni v. City of
Pittsburgh, 824 F.3d 353, 372 n.20 (3d Cir. 2016). Plaintiffs
concede in their complaint that New Jersey already
“streamline[s]” the application process for out-of-state
physicians like Drs. MacDonald and Gardner. App. 48. And
though they complain that applying for and maintaining a
license still entails some fees and administrative tasks, 6
nothing in their complaint suggests that those add substantially
to the burdens that Drs. MacDonald and Gardner concededly
must assume to maintain their home-state licenses. They do not
contend that the fees are remotely prohibitive. They do not
explain how tasks like “[m]onitoring renewal dates,” App. 48,
create anything more than a de minimis burden. And their
oblique reference to “continuing education requirements,” id.,
tells us nothing about the burdens New Jersey imposes beyond
those imposed by their home states. Plaintiffs have plausibly
pleaded only that Dr. MacDonald and Dr. Gardner desire not
to assume additional burdens, and that is not enough for us to
6
New Jersey identifies some substantive requirements for
maintaining a license that are more rigorous than the
requirements in Dr. MacDonald and Dr. Gardner’s home
states, but Plaintiffs only complain about the fees and the time
burdens of administrative tasks, so that is all we consider.
24
conclude that the burdens are substantial. Because Plaintiffs’
suggested alternatives are not substantially less burdensome on
speech, New Jersey’s policy survives intermediate scrutiny.
See Bruni, 824 F.3d at 370–71, 372 n.20.
* * *
For all these reasons, we hold that New Jersey’s
requirement that one obtain a New Jersey medical license
before providing medical advice by telemedicine to persons in
New Jersey does not violate Plaintiffs’ First Amendment
rights.
III
Unlike their First Amendment challenge, Plaintiffs’
remaining challenges to the telemedicine law either have no
persuasive force or are not within our jurisdiction to resolve.
A
First, the law does not violate the so-called “dormant”
Commerce Clause because it neither discriminates against out-
of-state commercial actors, see Nat’l Pork Producers Council
v. Ross, 598 U.S. 356, 369 (2023), nor imposes burdens on
interstate commerce that are “clearly excessive in relation to
the putative local benefits.” Pike v. Bruce Church, Inc., 397
U.S. 137, 142 (1970); see Nat’l Pork Producers, 598 U.S. at
379–80.
The telemedicine law applies equally to in-state and
out-of-state doctors; all who wish to practice medicine
(virtually or in person) with a patient in New Jersey must be
licensed, regardless of the doctor’s location. See N.J. Stat. Ann.
§ 45:1-62(b). Plaintiffs counter that the law “mak[es] it harder
25
for out-of-state physician-specialists to do business in New
Jersey” because “maintaining multiple licenses” is
burdensome, Pls. Br. 43, and they say the law “strips away” the
advantages of running a national practice based in a single
location, Pls. Br. 44 (citation omitted). But New Jersey’s law
equally burdens physician-specialists with national practices
based in New Jersey, so the discrimination Plaintiffs have
identified is against multi-state practitioners, not against
doctors located outside of New Jersey. Cf. Tolchin v. Sup. Ct.
of N.J., 111 F.3d 1099, 1107–08 (3d Cir. 1997) (requirement
that attorneys admitted to practice in New Jersey maintain
offices in the state burdened attorneys with “small or sporadic
practices in New Jersey,” and such attorneys could be based in
New Jersey or elsewhere).
Plaintiffs also contend that the law has a protectionist
“leveling effect” like the law challenged in Hunt v. Washington
State Apple Advertising Commission, 432 U.S. 333 (1977). Pls.
Br. 44. Not so. Hunt involved a state law mandating use of an
inferior apple-grading system that in-state growers were
already using and out-of-state growers were not. Id. at 340,
350–52. The so-called “leveling effect,” id. at 351, resulted
from the requirement that out-of-state growers conform to
what in-state growers were already doing, see id. at 340, 351–
52. Here, Plaintiffs have identified nothing in the New Jersey
law that favors practices unique to physicians based in New
Jersey. To the contrary, they spend other parts of their brief
explaining that competency standards are nationally uniform.
Plaintiffs also have failed to allege that the burdens of
New Jersey’s law on interstate commerce are “clearly
excessive” in relation to local health benefits. Plaintiffs begin
at a disadvantage in the Pike-balancing analysis because
medicine is a field traditionally subject to local regulation. See,
26
e.g., Zahl v. Harper, 282 F.3d 204, 211 (3d Cir. 2002). So New
Jersey’s power to interfere with the interstate market is at its
peak. Kassel v. Consol. Freightways Corp. of Delaware, 450
U.S. 662, 670 (1981). We thus “will not second-guess” New
Jersey’s judgment that its local benefits are “important[t] in
comparison with related burdens on interstate commerce”
unless those benefits are “illusory.” Id. (citation omitted).
Plaintiffs have failed to overcome that disadvantage.
Initially, the burdens imposed on interstate commerce
by New Jersey’s telemedicine law appear straightforwardly
proportional to the benefits it produces. The licensing
conditions aim to protect New Jersey-based patients from
unqualified and unfit practitioners. In service of that
commonsense purpose, New Jersey requires practitioners who
are already practicing in another state to undergo a streamlined
licensing process to verify their qualifications. True, that
process burdens cross-border practice, but we have deemed
similar trade-offs uncontroversial. See, e.g., Castille, 799 F.3d
at 225 (burden on interstate commerce of requiring attorneys
barred elsewhere to take the Pennsylvania bar exam was “not
clearly excessive in relation to Pennsylvania’s interests in
regulating its bar and securing favorable treatment for
Pennsylvania-barred attorneys” (internal quotation marks
omitted)). If requiring out-of-state attorneys to take another bar
exam is not an excessive burden, then requiring out-of-state
doctors to complete a few administrative requirements and pay
a reasonable fee should pass muster easily.
In response, Drs. MacDonald and Gardner do not
contend that New Jersey’s licensing scheme has any unique
features that stretch its effects to the national market for
physician-specialists or for medicine more broadly. Cf., e.g.,
Nat’l Pork Prods., 598 U.S. at 399–400 (Roberts, C.J.,
27
concurring in part) (reasoning that a California law was
plausibly excessive in relation to local benefits because it
would impact interstate transactions with no connection to
California); Edgar v. MITE Corp., 457 U.S. 624, 643 (1982)
(Illinois law was excessive in relation to local benefits because
it had “nationwide reach”). Instead, they allege that the
administrative tasks and fees New Jersey requires are
unnecessary for the state’s patient-protection purposes.
Specifically, they allege that no harm resulted during the two-
year period in which New Jersey waived fees for and expedited
its licensure process and permitted out-of-state doctors to see
COVID-19 patients and patients with whom they had a
preexisting doctor-patient relationship. Even assuming that
allegation was enough for us to second-guess New Jersey’s
policy judgments, no allegations about the licensure process
plausibly suggest that its burdens are excessive in light of the
alleged lack of benefits conferred by the more stringent rules.
The complaint merely alleges a few extra weeks of processing
time, several hundred extra dollars in fees, and the unspecified
time burdens of certain administrative tasks for maintaining the
license. Nothing in the complaint suggests how these marginal
burdens on individual doctors might result in any substantial
burden on the interstate market.
B
Nor does New Jersey’s telemedicine law violate the
Privileges and Immunities Clause of Article IV. That clause
prohibits states from needlessly discriminating against
residents of other states “on matters of fundamental concern,”
United Bldg. & Constr. Trades Council of Camden Cnty. &
Vicinity v. Mayor & Council of Camden, 465 U.S. 208, 220
(1984). Essentially for the reasons just explained, the
telemedicine law does not discriminate against those who
28
reside outside of New Jersey. Any physician who wishes to
conduct telemedicine with a patient located in New Jersey, no
matter where he or she lives, must obtain a New Jersey medical
license.
C
Finally, Michael Abell lacks standing for his claim that
the telemedicine law deprives him of his substantive due
process right to direct his son’s medical care. Article III
standing “implicates our subject matter jurisdiction,” so “we
must consider it independently” even though New Jersey never
raised the issue. Cook v. GameStop, Inc., 148 F.4th 153, 163
(3d Cir. 2025). It is axiomatic that a plaintiff may sue for
redress of only “actual or imminent” injuries and not
“conjectural or hypothetical” ones. Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992) (citation modified).
Abell would like the option to consult with Dr.
MacDonald via telemedicine from New Jersey if an anomaly
appears on one of his son’s future scans for reemergence of the
cancer he was diagnosed with at 18 months old. But Abell’s
son is a teenager now, and only one annual scan has ever
required Dr. MacDonald’s consultation. And Abell has not
alleged any other facts—like the percentage of patients whose
cancer recurs or the likelihood that future scans will contain
anomalies requiring expert consultation—suggesting that
another anomaly is “certainly impending” or a “substantial
risk.” Clemens v. ExecuPharm Inc., 48 F.4th 146, 152 (3d Cir.
2022) (citation modified). “[P]ossible future injury—even one
with an objectively reasonable likelihood of occurring—is not
sufficient.” Id. (internal quotation omitted). So the substantive
due process claim must be dismissed for lack of subject-matter
jurisdiction. GameStop, Inc., 148 F.4th at 162–63. We will
29
modify the District Court’s dismissal order to indicate
dismissal without prejudice.
IV
For the reasons stated, we will affirm the District
Court’s order dismissing all claims, with the modification that
Abell’s substantive due process claim will be dismissed
without prejudice for lack of jurisdiction.
Jack E. Brown [Argued]
Caleb R. Trotter
PACIFIC LEGAL FOUNDATION
Counsel for Appellants
Matthew J. Platkin
Jeremy M. Feigenbaum
Stephen Ehrlich
Nathaniel F. Rubin [Argued]
Francis X. Baker
Michael Antenucci
OFFICE OF ATTORNEY GENERAL OF NEW JERSEY
Counsel for Appellee
30