lower court should be reversed and this case remanded on both the free speech and the equal protection claims i'd like to focus on free speech and then we'll talk about equal protection at the end if i have a little bit of time that you think that for gets is enough to get us away from you having to go on in order to prevail yes your honor absolutely because this court in hines one adopted the professional speech doctrine and adopted the sweeping conception of incidental speech that is part and parcel of the professional speech doctrine and we know this because hines one says so on its face right at the bottom of page two when one this court talking about this sweeping conception of incidental speech says this principle is often linked to justice white's concurrence in low b s c c which this court acknowledged in serafin a year later is the hallmark of the professional speech doctrine and what's justice white take away on incidental speech quoting again just to to add to the professional speech is incidental to the conduct of the profession full stop not it might be incidental sometimes under certain facts or maybe it's incidental in this situation it is by definition incidental if there is a generally valid conduct regulation and that's why excuse me that's why hines one is so short it's just a few paragraphs hines one says we don't have to do and as speech case hines one says nor does the fact that this rule may have some impact on the veterinarian speech dictate a different result in other words we don't have to do what the courts ordinarily do as applied free speech humanitarian law project mifflin embraces humanitarian law project as an example of protecting the individual ised advice of lawyers and what's the take away then from if on incidental speech ordinary st amendment rules apply to so called professional speech that doesn't mean the government can't regulate speech incidentally but two things have to be present number one there has to be conduct number two the conduct and the speech have to be in mifflin says tied to each other in other words they are inextricably intertwined and when that happens it might be as in the nicholas example of informed consent immediately prior to a surgical abortion procedure you might actually have incidental speech there but once the court grasps that the professional speech doctrine is finished and it's sweeping conception of incidental speech is finished then dr heinz is case he's easy because there are any cases along the way that make want to lead the court astray it end up in a problem or so of course not so this court has not said anything specifically on the flight and the professional speech doctrine there are cases that have worked themselves through a few to the circuit level in district court opinions on if and one thing is consistently true all of those cases dealing with so called professional speech posts netflow apply a st amendment analysis they do not say oh this is speech or there's a general problem sorry this is conduct or there is a generally a political conduct regulation and then just stop there is a doctor your vet all he does is speech as you write as he doesn't actually physically handle or send medication or anything right exactly under the allegations of the complaint this is really easy for this court dr heinz is just a kindly senior citizen sitting in his den at home exchanging correspondence with people who want to benefit so the answers may be just a tad complicated which is that doctors with dr heinz is a state license veterinarian and so they are applying the statute to him because he is already a veterinarian it is quite possible that if someone were to do what dr hines is doing but they are not a licensed vet that the state might say well you're engaged in the unauthorized practice of veterinary medicine right x well under the st amendment your honor you could actually do that and you're so if your speech if you just posted on the internet and said mr rose this is what i think you should do about your medical condition under walsh laager that speech is fully protected by the st amendment court and said i have a st amendment defense the state could apply the statute to you it's just that it would have to satisfy some level of st amendment scrutiny in order to tell you that case in some counseling situation i can't but anyway where they were allowed to do some general kind of thing if it was something in mental health it absently at that case they go ahead i'm sorry that's ok so my main point is that whether the government is applying the practice act to an unlicensed person or applying it to a license person if that application operates in that situation as a burden on speech then the government has to satisfy as applied a st amendment standard now it might be that in certain situations the amendment claim taken seriously right that is not far behind one which the district court felt correct trained correct the district court concluded that hines one was really a case about incidental speech and  didn't disturb that and what we're saying is that hines one and mifflin both talk about incidental speech but in hinds one it's justice white's conception which is that everything is incidental as long as there is a general concept can possibly be seem to signal a change or a trend aren't enough it has to either be an express over which it isn't or a clearer so what is so clear about this overruling what is so clear your honor is leader ject it the professional speech doctrine and the professional speech cases that form the basis of hines want hines one can't be fairly read anymore because all of its underlying decisions have been called into question many of them directly more came for example the th to put in change the incidental burden on speech and that is what hines is relying on rightly or wrongly maybe wrongly wryly iran is relying on the incidental they add this thing about justice white but it's not solely that they say states have powers to reget regulate professionals they can regulate their conduct that has an incidental effect on speech too bad and we're good to go and if it says we're not addressing this incidental concept know so i would respectfully disagree your honor that mifflin doesn't say we're not addressing the incidental question what mifflin's said it is the professional speech doctrine is gone and so what that means is ordinary st amendment rules apply including ordinary st amendment conceptions of incidental speech and for speech to be incidental under ordinary st amendment principles there must be conduct and the speech must be tied to it justice white's concurrence has  distinctly different conception of incidental speech and i would point to the court because nicholas cited humanitarian law project favorably i would invite the court to take a look at holder again on page twenty eight  justice roberts is assessing a statute preventing material support for terrorists and the government took the position while this generally operates as conduct the speaker's took the position that this suppresses our political speech and chief justice roberts said the law here may be described as directed at conduct but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message and and so the question is whether the government may plaintiffs want to do provide material support in the form of speech and that's what dr hines wants to do he just wants to speak to people and i think judge al rods common sense st amendment intuition there is just a gentleman sitting in his own gannett home having a conversation with someone around the country or around the world that just feels like free speech and what nicholas saying is that the courts can no longer do this professional speech doctrine move where you label what would appear to be speech as conduct or as incidental speech in order to take it outside the protections of the st amendment and so that's why we're asking the court to recognize that nif was so thoroughly barrus you would argue that it was nonetheless wrong afternoon and that the court needed to fix it that's certainly true your honor if if if the court if the court as you say concludes that if it is binding or sorry that defines one is binding i predict a very high probability of an ongoing petition council can you address the equal protection this is this is more trouble some  because while one could argue that this this this gives short shrift to the rational basis analysis that the abbey the monk case ok not short shrift to in any way we're stuck with this part of the opinion are we know you're not your alice why not certainly because in twenty thousand one hundred and seventy two years after heinz one was decided the texas legislature equal protection claim is completely new and so it's not the same old where they didn't have a suspect class and they just gave it a one paragraph it's a it's a few have a comparative or yes and you have a rational face i mean  may have a rational basis but you're allowed to have an evidentiary challenge to that under the case that's correct the monk's case provides the court with a roadmap for rational basis analysis and even acknowledging the deference that the government traditionally gets under the rational basis test when the government's asserted justifications are kind of right out in that hinterland where they seem like they might be irrational then courts say all right you get a chance to do separate institute refute those asserted russian us your your argument i mean you you would say it's possible it may not win but it's certainly plausible to survive twelve b and have to go to the next stage and let them you come forward with why you think it's irrational and put it forth everything and they come forward with everything of what the basis of it was  it's logical that's exactly correct your honor and we just want the chance to be able to test what we think are the pretty attenuated justifications that the government has offered against a little bit of evidence and against a little bit of reasoning either at the summary judgment it please the court this is a story decisis case in hines one this court upheld the state's physical examination requirement as a valid professional conduct regulation despite its incidental burden on speech rule of orderliness case i think they're one in the same effect it really was a case of i think i'm sorry go ahead i would i think they're effectively the same analysis but it's ok this all these issues have been decided in hines one this court  far from unequivocally rejecting the reasoning of heinz one the supreme court's sniffly decision reaffirmed the continuing validity of the incidental burden doctrine that was employed by this court just otherwise but this isn't an  incidental burden case because the whole thing is speech i take two points to that it is an incidental burden case because the statute at issue regulates the entire practice of veterinarian medicine the conduct and speech aspects it says you can't do this in till you've gauged in a physical examination of the animal it's no different than any license requirement across every profession including a law license you can't engage in the conduct or speech components of the practice of law or the practice an authorized regulated professions would subject him or herself to that he's not having any contact associated with these animals i mean unless you think turning on the computer is the conduct or some kind of cute argument like that you know i mean this this veterinarian is reviewing medical records he's evaluating conflicting diagnoses of other veterinarians he's reviewing drug prescriptions these are conduct elements of practicing who loves animals that once you're and evaluating specific animals and giving targeted veterinarian vice absolutely that would be the are not authorized practices that are not in medicine so this court needs to follow its holding in hines one because again reaffirms the very doctrine that this court used to uphold our laws the courts should also reject times equal protection claim because the state's differential treatment of medical doctors and veterinarians is rationally justified by differences between humans and animals no no i mean as long as the court ten hypothesize a rational basis for the distinction that's that is enough to uphold the law is not an evidence based standard under a rational basis  review the can you point me to where do you believe in fla since the the doctrine regarding incidental speech is entirely in place in if because you tell me that you tell us that and if a pal of the speech but he did not say that the doctrine is the same anymore well i don't tell me where it says that the doctrine in analysis is exactly the same as what it used to be in fact new and different i think if you look at pages it looks like it's two thousand three hundred and seventy three going from there in the opinion it again the incidental burden doctrine was not at issue and if it was passing on it and and saying that i mean it had no occasion to narrow the incidental burden doctrine because what was at issue in islam was a content based speech restriction and if you had a law that  california law that was being challenged that that required pregnancy centers to disseminate a specific state crafted message or about the availability of free abortion procedures and the court said that that was subject to heighten st amendment scrutiny it rejected the th circuit's use of a lower form of scrutiny but again why wasn't it issued the court took pains to say that court that states may continue to regulate conduct despite incidental bur than any licensing requirement it's not targeted at speech the statute only says that you can't practice veterinary medicine just like our you know statutes restricting persons from practicing law or practicing  medicine or any other profession you can't do the speech components of the practice without getting a license all this this requires a license and a physical examination and again the key point is that this court already upheld this and does nothing to overturn the basic analysis that this court engaged in using the incidental burden doctrine rejected the as applied claim and there's nope nothing in italy even talks remotely about has a flag but why is that right i didn't ask we already considered that we're now looking at did we make the right that that's the conduct is the reviewing everything and then the speech is down to that that is iraq's that's precisely right the generalized advice that i can give or that you can give is not what's at issue here it's the targeted advice after looking at records and reviewing conflicting diagnoses reviewing conflicting drug prescriptions these i mean these are not just speech components that's why the as applied challenge was properly rejected the st time around and par animal after reviewing that animal's medical records i mean that would be the authorized practice of veterinarian medicine again hines effort to recast the physical examination requirement as a speech restriction is foreclosed by star of orderliness right that equally so and if we did nothing to change the conclusion that the court reached that that the physical examination regulates conduct not speech and if it was about a statute again that was directed at the content of of pregnancy centers practice that require them to post a specific message and in this couldn't be further from not this is a general licensing requirement much like a law license says that you can't practice law before you meet the requirements of the law license and you talk about the equal protection which is perhaps even more problematic it needs to be rejected because the states differential treatment of medical doctors and veterinarians is patently rational on  face again hines one already held that requiring a better than arion to conduct a physical examination prior to treating that animal rationally promotes higher quality veterinarian care and there is no suspect class that's that's at issue now we the texas now allows medical doctors to use telemedicine with human patients it doesn't undercut the courts and michelle holding that requiring the physical examination promotes better care what do you do with the fact that the the abbey  says that they should have an opportunity to come forward with evidence to defeat the rational basis argued by the state that you don't just get to say motion to dismiss granted you have to actually go to the news the next day and age where they are plausible and that even where you do have a rational stated reason they can still be plausible under our binding precedent i think the court rejected all of the rationales offered by the state and any that it could hypothesize as patently irrational because the statute at issue was court this court right it's not an evidence right it's not an evidence based standard and if i don't remember that case alluding to evidence it the cases we cite and i think the accepted laws that it has to be patently irrational on its face the statute and  in this case the differential treatment between medical doctors and veterinarians is easily and rationally explained by the fact that human patients are able to communicate about their own symptoms phone or email at least in most cases whereas animals obviously cannot do that i am reading from the opinion at page two hundred and twenty three as the abbey points out all the rational basis review places no affirmative evident tree burden on the government plaintiffs may nonetheless negate that's correct but i think that that statement is out of out of step with with all the th circuit cases that we started that said that it has to be patently irrational on its face to be to move forward and and it's not an evidence based case says that patently irrational it doesn't have to be patently irrational in order to for the other side to get to step in well i think that if that were the case then i mean i mean there's a lot of other precedent that that would be overturning because i think these get decided on motions to dismiss all the time there are cases where they don't because the state's justification is patently irrational on and the court can't hypothesize any rational basis for the for the statute what people get less protection than animals under  just different i mean people that texas chose to expand access to care for humans through electronic means but again humans are able to communicate in most cases by on their own about their own symptoms via the phone or email an animal can't do that and that is a rational basis alone for the distinction between animals and humans i want to clarify in abbey there was a trial because there was a seeking an injunction through the trial on the injunction but we know where said that you hat you can never dismiss a case with its claim protection that would be a huge change in the law this was dealing with the evidence that was presented because the district court granted the injunction so we're reviewing the at so that's the context dismissed on two of the six grounds regularly and the only way that a plate of can get past it is to show convince a court that there is no hypothetical even the rational basis for the distinction that the statutes are making any and again here it's only rational that animals and humans are different when it comes to their ability to communicate about their symptoms and even where humans cannot like a baby again you have a parrot that's likely communicating by the phone who's going to be more familiar with the human symptoms than a human normally is with animal symptoms and that is the rational basis for the distinction between the two statutes and if there's nothing further the court should affirm that that rational basis may just in your arguments in the case yes you just do it on the briefs if there is no there's no distinction that the legislature made or the regulatory bodies it doesn't need to be the legislation but i'm just confirming that it's only arguments that you've made here in the case correct correct or that the court could have about the size of even the courts all right i understand that we can do that i'm asking if there's anything else in the record to support that well then the record supports that that texas wanted to expand access to in the adoption of the expansion that identified veterinary medicine as being different legislature it showed off to not articulate some reason i don't think they are not asking where they needed to  disclosure is just when people come in the door and you've got to give them this disclosure before they engage in this and if hinds one is right then all nif i had to say in incidental speech is there is a valid medical practice act there isn't valid sinatra for act and therefore all speech by any of these professionals in this clinic is incidental knisley didn't say that it said you have to look at the incidental speech analysis not with reference to this general practice ect you have to look what's going on and what's going on in that case was no connection between any of the conduct that those licensed professionals can do and the actual speech medicine will prevent zoonotic disease for example at like rabies a disease it jumps from an animal to a human and given that the texas legislature says that human telemedicine is ok and the the greatest sense in this context of the monks trying to make coffee and so i would just very respectfully suggest to your honor that might not be quite right i was on the monk's case and so judged of all we had initially had a preliminary injunction but judge duvall just i understand i understand your honor and so what we're suggesting is that the abbey case represents the proper approach to rational basis analysis as reflected in the substantial string cites of cases from the supreme court and  the th circuit in which plaintiffs have prevailed in the end and were saying that you don't get discovery and to go to trial or to summary judgment just by definition just by virtue of bringing this claim but what we're saying is when the government's asserted justification at the twelve b six stage is that maybe texas legislators want babies to have more access to care but less quality and want poppy's to have less access to care but when they get it boy we wanted to be even better irrational  at what takes you past that is when the justifications that the government asserts and that the district court credits in dismissing your claim are not within the zone of plausible legislative discretion but have crep outside it so this starts to really look irrational so when the government is saying we want to protect puppies more than babies effectively that is outside the zone of plausible rational policy i don't believe that there's anyone in  texas any legislator that says i really don't want babies and worried mothers to have access to tell medicine but i don't know how to write this statute otherwise i'm grudgingly going to tolerate it for babies even though they can't talk  on the same thing there is an abrogation argument on the does a line case and the if the visit line panel renders its opinion before this court and it and that panel just says no involves a surveyor statute in mississippi and whether or not using a computer to create graphical renditions of meets and bounds constitutes speech or conduct and so if the court finds that it doesn't need to reach the abrogation question but says that it is a line would lose for example even even if the st amendment applied that would have no effect on this panel's decision here thank you thank you thank you your honor this case is submitted we appreciate the arguments of coun