Politics & Policy columnist Mark Cushing’s article “We’re at a Critical Point in Veterinary Medicine” [December 2024/January 2025] grossly exaggerates a federal appeals court decision on Texas’ veterinarian-client-patient relationship law. Regretfully, that exaggeration may jeopardize the good-faith practice of well-meaning practitioners.
Contrary to what professional lobbyist Cushing alleges, the court made no pronouncement that Texas’ prohibition on establishing a VCPR by electronic means was unconstitutional in all circumstances. In fact, the state law requiring an in-person exam to establish a VCPR remains in effect.
The appeals court did find the Texas law violated the First Amendment protections of a veterinarian who engaged in speech by providing information to pet owners via email without first establishing an in-person VCPR. The court found that the Texas VCPR statute is a generally applicable law regulating conduct. It reiterated that conduct is not protected under the First Amendment. It did not even consider whether the law would survive constitutional challenge when conduct, such as prescribing medicine or other acts of veterinary practice, is at issue instead of speech.
Veterinarians who prescribe medication or offer medical advice relating to a specific patient without abiding by the state’s in-person exam requirement are just as exposed to discipline by the Texas Board of Veterinary Medical Examiners today as they were before this ruling.
This ruling does not — and should not — open the gates to the widespread practice of telemedicine in a veterinarian’s first encounter with an animal or a herd. A properly established, in-person VCPR helps ensure animal health and defends public health. Telemedicine is a vital tool in the veterinarian’s toolbox once a VCPR is established.
MARK CUSHING RESPONDS
Dr. Ferrill’s letter challenging my view of the federal 5th Circuit Court of Appeals ruling on a telemedicine VCPR is interesting in one respect: Parties that lose before an appellate court struggle to characterize for the public how limited and ultimately unimportant the ruling is, almost to the point of suggesting it was a victory for them rather than a smashing defeat.
Do you suppose the 5th Circuit views it that way? Of course not, especially with the breadth and detail of the Hines ruling putting to bed a decades-long battle between a veterinarian and the Texas Board of Veterinary Medicine. The 5th Circuit opinion dismantled brick by brick the Texas board’s rationale for enforcing a ban on a telemedicine VCPR and ventured far beyond a narrow ruling about the use of emails by veterinarians.
Any debate about the scope of this federal opinion would be settled by each reader finding the time to read the entire opinion. It’s not brief and, of course, is chock full of legal jargon. Its fulcrum is our First Amendment right to free speech, including commercial speech, and the recognition that much of what veterinarians do in their daily jobs uses communication tools (speech and writing) to treat patients and guide their owners.
The court judiciously, and I daresay cleverly, dismantled the state’s arguments and made clear that the Texas statute banning a telemedicine VCPR cannot be sustained or enforced despite the valiant efforts of the Texas VMA to suggest or believe otherwise.