Traditional Medical Licensing Requirements Don’t Generally Violate First Amendment Rights of Doctors Providing Advice

From MacDonald v. President of N.J. State Bd. of Med. Examiners, decided yesterday by Judge Thomas Hardiman, joined by Justice Thomas Ambro:

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….

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 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. 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….

The court concluded that the law was a content-based speech restriction, citing the Supreme Court’s decision earlier this year in Chiles v. Salazar (which struck down the Colorado ban on conversion therapy, as applied to therapy that consists entirely of speech). But it concluded that such laws nonetheless didn’t have to pass the “strict scrutiny” usually required for such content-based speech restrictions, because they were “consistent with a long and robust regulatory tradition” of professional licensing:

Our determination that New Jersey’s law is content-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.

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. 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.

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—showed that it could “play well with the First Amendment.” 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…. [F]rom 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. 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….

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. An Act of England’s Parliament confirmed the charter a few years later. 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.” Manual tasks were left to surgeons and apothecaries. So prohibiting the unlicensed practice of “physick” was a content-based regulation of speech.

Two American colonies—New York and New Jersey—also passed medical licensing laws before the revolution. That was notable given the nascent state of medical practice and education on this side of the Atlantic. 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. Under these laws, one could practice medicine only after demonstrating competency by passing an exam or obtaining a qualifying degree.

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 a patient’s medical history rather than by physical examination….

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. 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. Unlicensed practitioners could circumvent that restriction by demanding payment up front. And even the laws that provided for substantial punishment like fines or imprisonment were rarely enforced. Most American licensing laws were then repealed altogether during the Jacksonian era.).

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. For another, medicine was still viewed by many as more like religion than science, so religious-freedom sentiment often colored debates about licensing. Licensure requirements in general also were inconsistent with the prevailing egalitarian attitudes of the Jacksonian era. 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.

As medical science and economic conditions improved and prevailing political attitudes shifted, however, proponents of licensing regained momentum. Licensing laws reemerged even before the Civil War—as early as 1859. The pace picked up after the war: by 1890, 35 states had passed medical-licensing laws. By 1898, all had done so….

Throughout our history, providing advice has remained a core part of medical practice, and licensing schemes have continued to cover it. 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….

The court then held the law would be upheld under intermediate scrutiny, partly because it was pretty easy for doctors licensed in other states to get cross-licensed in New Jersey:

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. No precedent establishes the mode of scrutiny for such cases….

[T]he history and nature of medical-licensing laws convince us that 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.

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,” because they make no viewpoint distinctions, and among licensed doctors the laws do not even make content distinctions. 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. The unlicensed may still participate in national conversations about medicine even if they cannot convey medical advice or diagnoses to 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.” That standard applies to viewpoint-neutral laws that restrict wholly proscribable categories of speech like obscenity. It is unclear whether it also applies in cases involving speech that has traditionally been subject to lesser restrictions than total proscription.

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.” 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” of their home 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. Plaintiffs concede in their complaint that New Jersey already “streamline[s]” the application process for out-of-state physicians like Drs. MacDonald and Gardner.

And though they complain that applying for and maintaining a license still entails some fees and administrative tasks, 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” create anything more than a de minimis burden. And their oblique reference to “continuing education requirements” 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 conclude that the burdens are substantial. Because Plaintiffs’ suggested alternatives are not substantially less burdensome on speech, New Jersey’s policy survives intermediate scrutiny….

This reasoning left open the possibility that laws that do make it hard for doctors to get cross-licensed would indeed be struck down under intermediate scrutiny—though it also left open the possibility that only rational basis scrutiny would apply, in which case such laws would likely be upheld.

Nathaniel F. Rubin, Matthew J. Platkin, Jeremy M. Feigenbaum, Stephen Ehrlich, Francis X. Baker, and Michael Antenucci represent defendants.