The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

State Legislature Passes Bill Restricting Pharmacist Speech About Ivermectin and Hydroxycholoroquine

|

From a Missouri bill (HB 2149), which is apparently now heading to the Governor for approval or veto:

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.

Seems to me like an unconstitutional speech restriction. To be sure, the government may restrict professional-client speech in some situations where it can't restrict it in other contexts. (Consider the fact that some speaking professions, such as psychotherapy, may require a license in the first place, or that giving negligent professional opinions or predictions to a client may be malpractice even if a newspaper columnist or blogger can't be sued for such speech.) Nonetheless, courts have recognized that professional-client speech is indeed entitled to considerable constitutional protection, see, e.g., Wollschlaeger v. Governor (11th Cir. 2017) (en banc). To quote the Supreme Court's opinion in NIFLA v. Becerra (2018),

The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals' speech "pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information."

Take medicine, for example. "Doctors help patients make deeply personal decisions, and their candor is crucial." Throughout history, governments have "manipulat[ed] the content of doctor-patient discourse" to increase state power and suppress minorities:

"For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients. In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the 'health of the Volk' than to the health of individual patients. Recently, Nicolae Ceausescu's strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS." [Paula] Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B.U.L. Rev. 201 (1994).

Further, when the government polices the content of professional speech, it can fail to "'preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.'" Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform. "[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market," and the people lose when the government is the one deciding which ideas should prevail.

Seems to me to fully apply to the ban on pharmacist speech here. A state legislature may of course ban pharmacists' from refusing to dispense prescribed drugs. But it may not ban pharmacists from merely speaking about such drugs by disputing their efficacy (at least unless the ban is limited to opinions that would qualify as incompetent medical advice, and nothing in the statute so limits the ban). Thanks to commenter IntelligentMrToad for the pointer.

NEXT: Judge Neomi Rao on "The Province of the Law"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Okay, the pharmacist can say anything he wants about the effectiveness of the prescribed treatment as long as he still fills the prescription absent a safety concern particular to the specific patient.

    1. Don't forget that the pharmacist doesn't have to do the job if claimed superstition -- no matter how silly -- gets in the way.

      This is a clinger blog. Clinger rules are to be respected here.

      Well, until replacement.

      1. Hopefully you will not replace us, "Reverend"

        1. He's a Statist dunce and will wind up like all Statist dunce's.

          Reviled until forgotten.

        2. Frank apparently you haven’t been looking around but your kind is being replaced EVERYWHERE.

          Every state that flipped parties (with one unique exception), turned blue or at least bluish purple like Colorado and Virginia.

          Now just waiting on North Carolina, Georgia, and eventually Texas.

          The one exception was West Virginia but that was only due to a single issue - coal.

          1. might want to check your Calendar, Ape.
            Georgia Turned Blue (if you believe the Polls*) in January 2021(when the Senatorial Elections were, (and also the actual vote for POTUS, I'd explain how nobody actually voted for Trump/Biden in November, just for electors to the Electrical College, but if you haven't learned it by now....)
            But good chance GA's gonna turn Black, I mean Back, actually maybe "Black" and "Back" in November when Herschell Walker(won a Natty for the Red/Black Bulldogs in 1980) beats "Reverend" Warlock, who might be even more Antisemitic than Representative Mullah Omar....

          2. "The one exception was West Virginia but that was only due to a single issue - coal."

            There might have been another issue inclining West Virginia toward the Republican Party, conservatism, and Christianity:

            STATES RANKED BY EDUCATIONAL ATTAINMENT
            (includes territories; 52 entities ranked)

            HIGH SCHOOL GRADUATE
            West Virginia 44

            COLLEGE DEGREE
            West Virginia 52

            ADVANCED DEGREE
            West Virginia 50

            There is no dumber state in America than West Virginia.

            Believe it or not, though, there are a few states that are reported to be more religious.

            1. "There is no dumber state in America than West Virginia."
              Jeezo-Beezo "Reverend", you just made the best argument against D.C. Statehood.....
              And why is it D.C. Statehood only comes up when Repubiclans control the Congress/White House??
              D.C. "beats" (aka "worse than") W Va in every category, and that's with the confounding data of all the Homos like Pete Boot-Edge-Edge, Lindsay Buckingham-Nicks, etc etc)
              it's almost like there's a subpopulation that has a higher incidence of Crime/Drug Addiction/Extra-Martial Pregnancy...

              But C'mon "Reverend" what State do you make your (un) Humble Abode in? If you won't tell you're a Homo.

              Frank "Georgia, ever drank a Coke? Flew Delta? Watched a Braves Game?/Super Bowl LI(dammit)/changed planes at Atlanta-Hartsfield-Jackson-Zimbabwe??'

  2. California already has a similar law. I hope challenges to it are in progress.

    1. California has the Death Penalty also, with more condemned on Death Row than any other of Barak Hussein's 57 States , but haven't executed anyone since 2006 (part of why it's the largest Death Row)

  3. ...another example of too many laws.

  4. I'm not sure it's a problem for the legislature, but who does know more about the drug, it's efficacy to a specific condition and patient, the Dr. or Pharmacist?

    The Pharmacist doesn't examine the patient, but should know more on drug interactions. But it does seem to me that the Pharmacist would be spreading disinformation if they are saying that Hydroxychloqiune is unsafe to treat some conditions at normal dosages, since billions of dozes have been given worldwide, and it's approved for prophylactic use, that is to prevent a condition the user has not contracted. Same with Ivermectin, these are very safe drugs and have been prescribed, or are available over the counter, worldwide safely for decades.

    1. it does seem to me that the Pharmacist would be spreading disinformation if they are saying that Hydroxychloqiune is unsafe to treat some conditions at normal dosages,

      Unsafe in a very narrow sense. A useless drug may do no harm in and of itself, but if it is substituted for effective treatments it is hardly safe.

      1. Does the pharmacist even get told what it's being prescribed for? I mean, it does have perfectly legit medical uses, even if it doesn't seem terribly effective against Covid in retrospect.

        It IS occasionally useful to have the pharmacist giving unsolicited advice; Back in the 90's Riteaid put in a lot of work tracking my mother down because a prescription she'd gotten in one state would have interacted in a deadly fashion with a prescription she'd gotten in another state. Pick a pharmacy chain and stick with it, it may save your life for this exact reason.

        But we don't want pharmacists just randomly dissing drugs on the assumption that they're being prescribed for the wrong purpose.

        That's not to say the law in question is constitutional; I'm generally of the opinion commercial speech should NOT be an exception to the 1st amendment.

      2. While true, that is explicitly the doctor's professional responsibility to assess and determine. Pharmacists do not have the necessary medical context to make that determination for the patient.

  5. "I already got a prescription from my doctor, now I gotta worry about some nosy Nancy pharmacist (or more likely pharma tech)?"

    In my experience thus far, the only time you see the pharmacist is 10 minutes after you respond "yes" when the tech asks you if you would like to see the pharmacist. Hell, why do I need to go see a doctor if the pharmacist can decide what's right for me?

    1. "In my experience thus far, the only time you see the pharmacist is 10 minutes after you respond "yes" when the tech asks you if you would like to see the pharmacist."

      Usually doesn't take that long at my pharmacy.

      Also, for certain types of new prescriptions, they don't ask. Policy is the pharmacist has to hand it to you.

  6. It's daft that we even have to talk about this, but at this point every prescription written for either of those drugs needs to trigger a case review by the medical authorities. Where doctors are prescribing them for inappropriate conditions, the usual disciplinary process should be followed, up to and including criminal charges where justified.

    1. Physicians have been writing "off label" prescriptions since there were such a thing. Why is suddenly any different?

      1. Doctors are 100% allowed to prescribe drugs for off-label use. But they must have a good faith medical basis for doing so.

        1. We have data—Ivermectin scripts peaked during the southeast Delta death surge—it’s ineffective.

          1. The Volokh Conspiracy's target audience has no interest in any of your fancy medical standards, science, elitist credentials, expertise, education, modernity, or experience!

          2. "Delta" ????(great Airline BTW) You're about 20 subtypes behind, aren't they up to Omega/Prime Superscript? And judging by Sleepy Joe's actions, all that was needed was for everyone to stop wearing masks and go to Fancy White house Press Dinners.

      2. Off label prescriptions where there is a good medical basis for them are completely different to prescribing harmful substances without cause. As I said, this is not just a matter of medical discipline such as disbarment, but a criminal matter.

        The simple reality is that prescribing drugs which have side effects causes harm, and that harm must be weighed against the benefits. Where we know there are no benefits, the doctor isn't prescribing medicine, they're simply a poisoner.

        1. The simple reality is that you're proposing to crack down on one specific off label prescription, in a way we don't generally, because once it became a political issue, the prescription became a political crime. Making the prescription is a crime against your political party!

          So much for bodily integrity, and medical treatment being a matter to be decided between a doctor and patient. Really, that nonsense only applies to abortion, how dare anybody think it's a general principle?

          1. No, we're talking about poisoners. Their motives may be political, or may be financial. We really don't care _why_ doctors issued prescriptions they knew to be harmful. The important point is that they knew what they were doing was wrong.

            There are no other examples of anything like this which have not ended up with criminal charges, despite your imagined bias. When doctors occasionally fall into this trap, they go to jail. Simple as that. Nothing to do with batshit conspiracy theories, everything to do with a requirement to follow medical science.

            1. Doctors routinely make sub-optimal or even useless prescriptions, we do not treat this as "poisoning" as a normal matter, unless there is evidence of actual malice or depraved indifference.

              Medical judgements differ, and sometimes they're wrong, and that's the case with all professional services.

              You're proposing to treat a medical disagreement as a crime, and the only reason I can see for that is that it became a political issue.

    2. That might be one of the most medically-ignorant comments made here in a long time.

  7. Pharmacists specialize in watching out for patients, most acutely with respect to side effects, drug interactions, and drug safety. Like any specialty, they are expected to maintain professional knowledge general practitioners do not.

    Ivermectin can be dangerous, like other prescription drugs. Side effects include ataxia, low blood pressure, seizures, confusion, etc. It has a number of untoward interactions with other substances. Patient dosing is a potential pitfall.
    https://www.webmd.com/lung/news/20211021/people-hospitalized-after-taking-veterinary-drug-for-covid#1

    "Efficacy" is undefined in the bill. Efficacy for what? Cancer? Worms? Dementia? Pain management? Hemorrhoids?

    So this legislature has decided that the last line of professional defense against awful drug interactions and misuse should dispense a drug WITHOUT EVEN QUESTIONING THE PRESCRIBING DOCTOR PRIVATELY when it appears the drug is contraindicated or being mis-prescribed. What great ill is the estimable Legislature of Missouri fixing here?

    1. WHEN YOU TYPE IN ALL CAPS IT'S LIKE YOU'RE SHOUTING,

      dummy, see how much better that was?

    2. Funny how all these caring Pharmacists had no problems with billions of Opiate/Opioid (Morphine's an Opiate, Heroin's an Opioid, there's a difference (acetylation at the O-3 and O-6 positions if you're interested) Prescriptions for the last 25 years

      1. Where (and why) did you develop that random capitalization habit, Mr. Drackman?

        1. Entschuldigung, Herr Reverend, ich spreche English als Fremdsprache, verstanden??

          Lech mich,

          Herr Doktor Drackman

          1. Es tut mir leid, Irrtum.
            "Leck" anstatt "Lech"

          2. Dann vielleicht sollen Sie Englisch richtig schreiben.

            1. Schau hinauf, und fur die ungebildeten, Leck mich ist die abkurzung fur "Leck mich im arsch"

              1. The snide remark is ‘Leck mich am arsch’ you stupid wannabe.

                1. Well you're the expert at lecking arschlochs,

                2. "Hier hilft kein Kluger,
                  das seh' ich klar:
                  hier hilft dem Dummen
                  die Dummheit allein!"

                  (You get a special prize if you can identify the work that line comes from without looking it up.)

    3. Odd that this is the ONLY drug this is done for. Pharmacists don't routinely blast meds except for THIS single one.

  8. Yeah, this is just dumb. Somehow a professional in a position of trust has a constitutional right to make misleading and dangerous statements to individuals who rely on their advice? (Not to mention that the law actually stops short of saying that.) If this law doesn't pass strict scrutiny, nothing does.

  9. It's funny, when I first read the headline for some reason I thought it would be about a law preventing pharmacists from saying GOOD things about those drugs. Then as soon as I read "Missouri" I immediately knew it would be the opposite.

    But yeah, I think it's a silly law either way, and I trust Eugene's legal opinion to be sound.

    1. Hello, Mr. Moroni

      I hope a distinguished common patriotic citizen such as yourself is doing well, despite the best (worst) efforts of a bunch of fargin' iceholes in desolate backwaters such as Missouri.

      Watch out for those fargin' trick questions!

      How's Sweden?

      1. I'm not from there.

  10. Pharmacists are want-a-be Docs who couldn't get into Med School.

    1. Missouri legislatures are wanna-be adults mired amid the depleted human residue that remains in places like Missouri after generations on the wrong end of bright flight.

      No way the guy who crafted this drum intro was from Missouri.

      1. Reverend, Your Neurofibrillary Tangles are showing.

  11. "Yes Mrs. Smith, did you know the Medication your doctor prescribed may cause Anaphylactoid reactions, severe urticaria, angioedema, or bronchospasm, and I know you're 85, but it can cause effects on the human fetus during third trimester of pregnancy include prenatal constriction of the ductus arteriosus, tricuspid incompetence, and pulmonary hypertension; nonclosure of the ductus arteriosus during the postnatal period (which may be resistant to medical management); and myocardial degenerative changes, platelet dysfunction with resultant bleeding, intracranial bleeding, renal dysfunction or renal failure, renal injury or dysgenesis potentially resulting in prolonged or permanent renal failure, oligohydramnios, GI bleeding or perforation, and increased risk of necrotizing enterocolitis.

    Oh you already have Aspirin? Never Mind

  12. Of course it was Pharmacists who discovered that not only did Estrogen Replacement Therapy not decrease the incidence of Heart Disease, it increased it! https://pubmed.ncbi.nlm.nih.gov/9683309/
    Just kidding, it was the Pharmaceutical Companies, with a Study (the "HERS" study, don't you love Pharmacy Acronyms?)

    For my money, I'd take a few more Heart Attacks if it decreases the symptoms of "Late Luteal Phase Dysphoria" (Google it)

    Frank M.D. (mentally deranged)

  13. I'm so glad to see that Vaxx AIDS is a real thing.

    It's going to thin out alot of really stupid people.

    1. Well we need something to thin out the herd, what with Abortion going away (or at least in some States*)

      * I know Rev, those Bitter Klinger States (who happened to go for Sleepy, if you believe the Polls(I don't) like Arizona, Georgia, Michigan, Wisconsin)

  14. Do presciptions say what the drug is for? The two drugs referenced here are legitimate, safe drugs for certain uses. They are ineffective against COVID. How does the pharmacist know what it is prescribed for? Unless the patient tells him.

    1. Umm, you do know there is this invention called Insurance Companies, and most prescriptions are paid for by such Companies? and that such Companies have very detailed rules on what can be prescribed for certain conditions? And that there is this thing called ICD 10, which classifies every Disease/Injury/Condition known to man (and it's much easier for Apedad to tell people he was at the ER for a ICD-10-CM Diagnosis Code of T18.5 than in layman's language.

      1. And that would matter how if the diagnosis code isn't on the prescription?

        1. Umm, you do understand that Pharmacists don't just look at the Rx (Latin for "Take", that's the extent of my Latin(unlike Pete Boot-Edge-Edge, I don't claim languages I'm not actually proficient in(including Engrish)
          There's a whole plethora of boxes to check, free text, codes to enter, DOB, Allergies, bla bla bla,
          Know this first hand, as I worked as a Pharmacy Tech until the Surpreme Court admitted me to Med School (Yes, I'm Allan Bakke(M.D.)
          So know, I mean No (Damn Engrish language and its Homo-Phones (Will a POTUS Pete Boot-Edge-Edge give every Homo a Free Homo-Phone?)
          Most Rx's don't have the Diagnosis on them, could lead to some uncomfortable sitch-U-Asians..

          "Clinton!!! William Jefferson Clinton!?!?!?!? I have your Rocephin Injection for Gonnococcal Urethritis ready!!"
          "Biden!!!! Joseph Robinette?? Your Namenda is ready!!!"

          Frank "Not a Pharmacist (thank J-hova) '

          1. "There's a whole plethora of boxes to check, free text, codes to enter, DOB, Allergies, bla bla bla,"

            My pharmacy has a couple of drug allergies on record for me. However they didn't get that information from the Paperwork that came with any prescription. They got that information to put on file by asking me for it.

    2. One day at the pharmacy, I bought for my wife her over-the-counter antacid and her Rx citalopram. I decided to pay for both at the pharmacy register. The pharmacist asked me if they were for the same person, I said yes, the pharmacist said there was a bad interaction with those two and recommend a different antacid. When people have their meds vetted for inteactions they usually only have their Rx meds checked. They need to have their OTC and Rx meds checked for bad combos. Just because a drug is OTC does not mean it can't have a bad interaction with a Rx drug.

      When I have mentioned that at 74 the only medicines I take are Tamsulosin and Vitamin D3, recently I have been told that D3 is Covid snake oil and I should not take it all or I'll die. The combo was prescribed to me for prostate health.

      When I was hospitalized 3-8 Apr 2020 for Covid, the only thing I was given specific to Covid was HCQ. When I was released I was given Rx for 3 days of HCQ, 5 days of Doxycycline (UTI), 7 days of of Cefdinir (pneumonia). I survived. Whether HCQ helped, it certainly did not kill me.

      1. As I remarked above, it's a good idea to pick a pharmacy chain and stick with it, because they have systems in place for checking for bad drug interactions even if you obtain the drugs on different occasions or even different states.

        1. Only if you self report those bad drug interactions to the pharmacy.

          1. No. They maintain a database of drug interactions, which they continuously update. So, if you pick up a prescription for one drug in, say, Michigan, then go down to Florida, and locally get prescribed another drug, and go to fill the prescription at the same chain, the pharmacy chain will alert you if there's a known drug interaction between the two drugs.

            In my mother's case, they actually started contacting suspected relatives to get ahold of her, to let her know to stop using the new prescription immediately and see a doctor, because they didn't have local contact information for where she was staying at the time. I expect that today the search would be fast enough to alert the pharmacist at the time the prescription was filled.

            But, sure, if YOU have an interaction not on the list, by all means let them know.

      2. My Primary has a list of all of the OTCs I take including vitamin supplements.

  15. It is unethical for a pharmacist to use his state-granted position of authority to interfere with a physician's relationship with his patient.

    1. Indeed. I note that in some states they nonetheless granted an exception to pharmacists where RU-486 was concerned.

      1. Ahh RU-486, (I preferred the earlier Hypnotic, "RU-16-YeT" (get it?)
        Remember Attendings in Medical School (OK, 1: it was the 1980's, 2: it was the 1980's) joking about how it should be put in the Water.... (variants were 1: Malt Liquor, 2: Water Melon, 3: Fried Chicken)

  16. Maybe the best approach would be to have the pharmacists alert the state medical board and any relevant insurer (adult supervision) with respect to any prescription involving hayseed snake oil.

    1. Umm, "Reverend" you are aware (obviously not) that State Medical Boards are Run By the Doctors, For the Doctors, and if Hunter Biden was a Doctor, at worst he'd have to go to a few months of "Rehab".
      Pharmacists have a significantly higher incidence of Drug Addiction (They do work in the "Candy Store") and their Boards are even more Impotent (sure you know what that means) than the Medical ones.

  17. Good lord, a majority of these posts are muted for me.

    I suppose it's a sign the nutters and trolls Covid threads bring out are getting less engagement as they recede into irrelevance.

    1. You are aware that who you see as muted is purely under your own control, and thus is not at all evidence of any sort of general recession into irrelevance, right? It's just a manifestation of you, yourself, becoming more intolerant.

  18. What is it about conservatives that they think it's appropriate or desirable to insert the legislature between a patient and their medical care?

Please to post comments