David B. Brushwood, BSPharm, JD
A federal court in Missouri recently granted a pharmacist’s motion for a preliminary injunction after the pharmacist asserted that her constitutional right to free speech was infringed by a recently enacted state statute.
The statute challenged by the pharmacist says “a pharmacist shall not contact the prescribing physician or the patient to dispute the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets for human use unless the physician or patient inquires of the pharmacist about the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets.”
The pharmacist sued the Missouri Board of Pharmacy and its members, contending that the new statute placed her in jeopardy for disciplinary action by the Board if she were to engage in professional consultation activity that she claimed was protected by the First Amendment of the United States Constitution.
The pharmacist’s lawsuit requested that the court grant a preliminary injunction against enforcement of the state statute. Attorneys representing the Board of Pharmacy moved for dismissal of the case.
The court first noted that “if a party shows a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are deemed to have been satisfied.”
The court explained that the key issue was whether the new statute “infringes the free speech rights of the plaintiff and other Missouri pharmacists by threatening to impose liability based on the viewpoint of their speech.”
Government attorneys representing the Board of Pharmacy contended that the statute does not engage in viewpoint discrimination because the statute regulates conduct and not speech. In response, the court said, “this argument is unavailing because the statute does not prohibit initiating contact with patients or doctors (a regulation of conduct). Nor does it prohibit initiating contact with patients or doctors to speak on any matter at all (a content-neutral regulation of speech). Nor does it prohibit initiating contact with patients or doctors to talk about a particular subject matter, such as any discussion of either drug (a content-based regulation of speech).
Rather, the provision bans initiating contact only if the contact is to express the viewpoint that the drugs are not effective for human use. Hence, it is viewpoint discrimination.”
The court explained that “since the statute engages in viewpoint discrimination, that is the end of the matter.”
The court cited prior cases from the Supreme Court of the United States recognizing that “the government may not discriminate against speech based on the ideas or opinions it conveys,” that “discrimination against speech because of its message is presumed to be unconstitutional,” and that government restrictions “based on viewpoints are prohibited.”
The court further explained that but for the new statute, the pharmacist “would be able to freely fulfill her professional duties and protect patients by communicating her concerns without the fear of disciplinary consequences for expressing her professional opinion.”
Furthermore, even if the Board were to assure the pharmacist that they would not enforce the new statute, the pharmacist’s speech “would be chilled” because she “would not feel comfortable speaking freely with physicians and patients” for fear of “complaints or other professional liability.”
The pharmacist’s motion for a preliminary injunction was granted.
The factual context of this case is relatively narrow. It evaluates one pharmacist’s challenge to a law in one state where politicians sought to limit the consultations by pharmacists with regard to the therapeutic appropriateness of two drugs.
The legal principle in the case is very broad. The United States Constitution protects the right of pharmacists to engage in consultations with patients and prescribers regarding the risks and benefits of medications.
The government cannot forbid the expression of a professional viewpoint by a pharmacist during such consultations.
The professional judgment of pharmacists cannot be hijacked by politicians whose goal is to promote a political agenda. ■