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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No. 19-40605

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

1

Texas’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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