About two months ago, we marveled at the notion that challenges to facially neutral state and local government vaccine requirements were still percolating through the legal system. We probably should not have been surprised by the persistence of frivolous litigation. After all, our day job entails defending litigations that can last years longer than they should after the science and merits have been pretty clearly decided, at least in our defense hack eyes. We should not be startled to see that this flip side of COVID-era litigation also persists in 2023. After the last several years, perhaps we should turn down our internal surprise-o-meter or risk a muscle strain from shaking our head so often at the things we find absurd. We will risk a shake and hearty scoff at the law at issue in Stock v. Gray, No. 2:22-CV-04104-DGK, 2023 WL 2601218 (W.D. Mo. Mar. 22, 2023). The result, at least on preliminary injunction, does restore a bit of our faith in the sanity of at least one portion of the federal system.
Stock involves a pharmacist’s First Amendment challenge to a patently ludicrous Missouri law. This was not like cases we still see where neutral vaccine policies are challenged (unsuccessfully) on the basis that they interfere with free exercise of religion, another First Amendment right. Instead, the Missouri law clearly picked a side. The side it picked was against public health and the authority of FDA, which is charged by Congress with protecting public health. As we have said so many times before, ivermectin is a veterinary drug that is not indicated for the treatment of any condition in humans and hydroxychloroquine is indicated to prevent or treat malaria in humans and to treat lupus and rheumatoid arthritis in humans. No reputable medical authority supports using either one to prevent or treat COVID-19 in humans. (To pile on, COVID-19 is a viral illness and malaria is caused by a parasitic protozoan.) Throwing that aside for non-funny political theater, Missouri enacted a law in 2022 that limited the ability of pharmacists to react to prescriptions for human use of either of these drugs. While pharmacists were made immune from disciplinary action from the state board of pharmacy for dispensing either drug on prescription, they were prohibited from “contact[ing] 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 [their] efficacy.” Id. at *4. To initiate contact would create a risk of a range of disciplinary actions against the pharmacist. That, dear readers, is what is known as a content-based restriction on free speech. No legislator with even a modicum of knowledge of First Amendment law could think this would pass muster given what the Supreme Court had to say about state law content-based restrictions against speech concerning pharmaceutical products in Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011), and especially in the months after the Supreme Court revisited the subject of content-based speech restrictions more generally in City of Austin v. Reagan Nat’l Adver. of Austin, 142 S. Ct. 1464 (U.S. 2022).
Like we said, this seemed like political theater rather than legislation directed at protecting public health, so maybe passing constitutional muster was not part of the equation. Stock’s challenge to the law contended her professional ethics required her to continue to dispute the efficacy of these medications for treatment of COVID-19, as she had been doing since March 2020, consistent with the advice of FDA, NIH, WHO, and an alphabet soup of public health entities, as well as manufacturers of these drugs. She sought to enjoin the statute because it infringed on her free speech. Within a few months, her motion for preliminary injunction and the defendant board of pharmacy’s motion to dismiss were ripe.
We will dispense with the challenge to plaintiff’s standing, which was weaker than the “evidence” supporting using ivermectin to treat COVID-19. The first step in the preliminary injunction analysis was deciding whether plaintiff was likely to succeed on the merits. She was. Noting that the statute’s prohibition applies when the pharmacist tries to “express a particular view, namely, a view disputing the efficacy of the drugs,” but not to “tout, endorse, or acclaim the drugs,” it was easily seen as impermissible “viewpoint discrimination.” Id. at *7. The board tried to turn the phrase “dispute the efficacy” into something akin to “discuss the positives and negatives of its use, regardless of whether the pharmacist agreed with or disagreed with the prescription.” The court rejected this argument because, well, it could read. Id. at *7-8. This meant the plaintiff was likely to establish that the statute was unconstitutional. Under Eighth Circuit law, this finding meant the other requirements for preliminary injunction were automatically satisfied. Id. at *8 (citing Rodgers v. Bryant, 942 F.3d 451, 456 (8th Cir. 2019)).
The Stock court noted that the board’s brief failed to cite Rodgers, “the controlling caselaw on the preliminary injunction standard,” and urged its counsel to cite “relevant controlling caselaw” going forward. Id. at *6 n.4. If that is how the case is being litigated by the board, then it will continue for a while. There seems to be little hope that Missouri would repeal its ill-conceived and backwards law. Doubling down on doltishness these days is no longer surprising.