PHILADELPHIA (CN) - A group of cancer patients and physicians asked the Third Circuit on Wednesday to allow telemedicine services between New Jersey citizens and out-of-state doctors.
New Jersey law requires all physicians seeking to operate within the Garden State to obtain a New Jersey medical license, even if they reside out of state state and hold a medical license elsewhere. Under this law, even remote telemedicine services with New Jersey citizens cannot be conducted without a New Jersey medical license.
Two physicians - one in Boston and one in Pittsburgh - and two New Jersey cancer patients sued the New Jersey State Board of Medical Examiners in federal court in 2023 over the telemedicine restrictions, asserting First Amendment, commerce clause, privileges and immunities and due process violations.
However, U.S. District Judge Edward S. Kiel, a Joe Biden appointee, granted the New medical board's motion to dismiss in May 2025, finding the law does not discriminate against out-of-state residents since all physicians seeking to operate in New Jersey need to obtain the same licensure.
Representing the plaintiffs, attorney Jack E. Brown faced questioning over whether one of the cancer patients - J.A., a minor - and his father Michael Abell have standing since J.A. hadn't developed a recognized cancerous anomaly in at least three years.
"Mr. Abell's son isn't determined to get cancer again," said U.S. Circuit Judge Thomas M. Hardiman, a George W. Bush appointee. "And hopefully, he won't."
But Brown said annual visual scans remain necessary. "The condition that Mr. Abell's son has had frequently recurs - it requires constant vigilance," he noted, calling the recurrence a "likely event."
Still, U.S. Circuit Judge Thomas L. Ambro, a Bill Clinton appointee, questioned whether that purported "likely event" is enough to show standing.
"It looks to me like it is a hypothetical future problem you hope doesn't occur - is that correct?" Ambro asked Brown.
"It's certainly a problem that we hope doesn't occur," Brown replied, "but the standard for imminence under the standing doctrine is not certainty that the future event will occur. It's whether or not there's a substantial risk that it will occur, and that substantial risk does exist here."
Shifting focus to the plaintiffs' First Amendment argument, Brown and the appeals panel sparred over whether speech constitutes treatment.
"How do you define treatment?" Hardiman asked. "Because a psychologist or psychiatrist talking to someone - would you say that's not treatment?"
In response, Brown suggested talk therapy constitutes treatment only because speech is used to tackle a patient's ailment, distinguishing it from other doctor-patient discussions.
Still, Hardiman appeared unconvinced.
"That's not part of the treatment, whether to have the operation or not?" Hardiman asked. "What course of medication regimen or treatment? Isn't that part of the practice of medicine?"
"No, that's merely speech about treatments," Brown replied. "You can't treat cancer by talking at it, unlike with mental health issues."
Again, Hardiman pushed back.
"Isn't that why states regulate the practice of medicine?" he asked. "Because we don't want Doctor Google treating our patients, or we don't want the neighbor next door, who has the capacity to speak, to tell us whether things like proton therapy is a good idea? Isn't that the whole point here of professional licensure?"
Brown replied: "This is a narrow, as-applied case that does not implicate professional licensure generally. It only implicates speech without a profession about treatment"
Representing the New Jersey medical board, attorney Nathaniel F. Rubin almost immediately received questioning from Hardiman over where the line should be drawn as to what out-of-state physician's conduct should be considered unlawful.
"If they do a Zoom call on a check-up [to say,] 'Hey, you've got a bad scan,' is that something that's prosecutable under this New Jersey law?" Hardiman asked. "Where's the line of demarcation?"
"So there are always going to be, obviously, line-drawing questions about what does and does not constitute the provision of medical services," Rubin replied.
Before Rubin could continue, Hardiman interrupted: "You just avoided my hypo, though. Can you give us any insight as to whether that's over the line? Close to the line? Unsure?"
"So a hypo like the one that you posed just now, it might fall on the side of providing medical services," Rubin replied. "But even if it did, it's not what plaintiffs allege is the type of consultation that is taking place."
Senior U.S. Circuit Judge Anthony J. Scirica, a Ronald Reagan appointee, rounded out the panel.
During the hearing, the panel noted it may wait to make a ruling on the case until the Supreme Court decides Chiles v. Salazar. In that case, the Supreme Court is expected to determine whether conversion therapy - the scientifically discredited practice of using therapy to "convert" LGBTQ people to heterosexuality and traditional gender expectations - qualifies as treatment. A decision in that case is expected by the end of the Supreme Court's current term.
Source: Courthouse News Service
