United States Court of Appeals

for the Fifth Circuit

No. 19-40605

Ronald S. Hines, Doctor of Veterinary Medicine, 

Plaintiff—Appellant,

versus

Jessica Quillivan, Doctor of Veterinary Medicine, in 

her official capacity as President of the Texas State 

Board of Veterinary Medical Examiners; Keith Pardue, 

in his official capacity as Vice President of the Texas 

State Board of Veterinary Medical Examiners; Sandra 

“Lynn” Criner, Doctor of Veterinary Medicine, in her 

official capacity as Secretary of the Texas State 

Board of Veterinary Medical Examiners; Michael 

White, Doctor of Veterinary Medicine, in his official 

capacity as a Member of the Texas State Board of 

Veterinary Medical Examiners; Samantha Mixon, 

Doctor of Veterinary Medicine, in her official 

capacity as a Member of the Texas State Board of 

Veterinary Medical Examiners; Randall Skaggs, 

Doctor of Veterinary Medicine, in his official capacity 

as a Member of the Texas State Board of Veterinary 

Medical Examiners; Carlos Chacon, in his official 

capacity as a Member of the Texas State Board of 

Veterinary Medical Examiners; Sue Allen, Licensed 

Veterinary Technician, in her official capacity as a 

Member of the Texas State Board of Veterinary 

Medical Examiners; George Antuna, in his official 

United States Court of Appeals

Fifth Circuit

FILED

December 2, 2020

Lyle W. Cayce

Clerk

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capacity as a Member of the Texas State Board of 

Veterinary Medical Examiners, 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:18-CV-155

Before Elrod, Southwick, and Haynes, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

Does a veterinarian have a right to engage in telemedicine for a pet he 

has not physically examined? The plaintiff claims that right exists. He filed 

suit, challenging Texas’s physical-examination requirement for vets, which 

prohibits vets from offering individualized advice to pet owners unless the 

vet previously examined the animal. In 2015, we rejected the plaintiff’s 

claims under the First Amendment and Equal Protection Clause. Now, he 

claims that new precedent from the Supreme Court and this circuit dictate a 

different result. The plaintiff filed suit again in 2018, re-raising his First 

Amendment claims. He also added a new equal-protection claim based on 

Texas’s different telemedicine rules for physicians and veterinarians. The 

district court rejected the plaintiff’s arguments and granted the defendants’ 

motion to dismiss. We AFFIRM in part, REVERSE in part, and 

REMAND.

FACTUAL AND PROCEDURAL BACKGROUND

Dr. Ronald Hines, a licensed veterinarian in Texas, stopped practicing 

what might be called traditional veterinary medicine in 2002 due to his age 

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and physical limitations. Soon thereafter, he began using his website to write 

articles about pet health. People around the world began emailing Hines for 

advice about their own pets. Hines offered individualized advice over email 

and phone, and in 2003, he added to his website a flat fee for veterinary 

advice. 

Under Texas law, the “[p]ractice of veterinary medicine” is 

defined as:

(A) the diagnosis, treatment, correction, change, 

manipulation, relief, or prevention of animal disease, 

deformity, defect, injury, or other physical condition, including 

the prescription or administration of a drug, biologic, 

anesthetic, apparatus, or other therapeutic or diagnostic 

substance or technique;

(B) the representation of an ability and willingness to 

perform an act listed in Paragraph (A);

(C) the use of a title, a word, or letters to induce the 

belief that a person is legally authorized and qualified to 

perform an act listed in Paragraph (A); or

(D) the receipt of compensation for performing an act 

listed in Paragraph (A).

TEX. OCC. CODE § 801.002(5). To practice lawfully, the veterinarian must 

have “sufficient knowledge of the animal,” which is defined as either having 

recently examined the animal or having visited the “premises on which the 

animal is kept.” § 801.351(b). “A veterinarian-client-patient relationship 

may not be established solely by telephone or electronic means.” 

§ 801.351(c). Violations of these limitations are criminal offenses. § 801.504. 

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In 2012, the Texas State Board of Veterinary Medical Examiners 

investigated Hines and found he had violated state law. The Board ordered 

him to cease providing veterinary advice electronically without physically 

examining the animal. 

In 2013, Hines filed suit against the Board members in the United 

States District Court for the Southern District of Texas. He argued that 

Texas’s physical-examination requirement violated his First Amendment, 

equal-protection, and substantive-due-process rights. The defendants filed a 

Rule 12(b)(6) motion to dismiss, which the district court granted in part. 

Hines v. Alldredge, No. 1:13-CV-56, 2014 WL 11320417, at *8 (S.D. Tex. Feb. 

11, 2014). On appeal, though, this court held that all of Hines’s claims failed 

to state a claim. Hines v. Alldredge (Hines I), 783 F.3d 197 (5th Cir. 2015). 

Some things have changed since our 2015 opinion. In 2017, Texas 

revised statutes applicable to medical doctors, but not veterinarians, and 

allowed them to engage in some forms of telemedicine. The law removed 

Section 111.004(5), which had required face-to-face consultations to establish 

a physician–patient relationship before engaging in any telemedical services. 

Act of May 29, 2017, 85th Leg., R.S., ch. 205, § 2, 2017 Tex. Gen. Laws 379, 

380. The bill also added a new section to define what a practitioner–patient 

relationship looks like in the context of telemedicine. Id. (codified at Tex. 

Occ. Code § 111.005). 

Then, in 2018, the United States Supreme Court decided National 

Institute of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018). 

That case dealt with a California law requiring licensed and unlicensed crisis 

pregnancy centers to notify women about California’s low-cost services, 

including abortions. Id. at 2368. The Ninth Circuit upheld these 

requirements as regulations of “professional speech.” Id. at 2371. The 

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Supreme Court reversed, holding the notice requirements were 

unconstitutional. Id. at 2370. 

Hines filed the present suit on October 2, 2018, in the United States 

District Court for the Southern District of Texas. Based on the change in 

Texas’s telemedicine law, Hines brought a new equal-protection claim. 

Reading NIFLA as abrogating the professional-speech doctrine, Hines also 

asserts his First Amendment claims anew. The defendants moved for 

dismissal on December 14, and the district court granted the motion on June 

11, 2019. Hines timely filed a notice of appeal. 

DISCUSSION

We review the district court’s dismissal under Rule 12(b)(6) de novo. 

Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). “To survive a motion 

to dismiss, a complaint must contain sufficient factual matter, accepted as 

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

570 (2007)). This case involves two independent issues, one under the First 

Amendment and the other under the Equal Protection Clause of the 

Fourteenth Amendment. We analyze them separately.

I. First Amendment 

Hines admits that unless NIFLA abrogated Hines I, his claims are 

foreclosed. The parties ask the court to apply the “mode of analysis” test to 

determine whether NIFLA abrogated Hines I. Stokes v. S.W. Airlines, 887 

F.3d 199, 204 (5th Cir. 2018). They disagree on how that test should be 

applied here.

Under the rule of orderliness, “one panel may not overrule [a prior] 

decision, right or wrong” unless there is an intervening change of authority. 

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Soc’y of Separationists, Inc. v. Herman, 939 F.2d 1207, 1211 (5th Cir. 1991). 

“[W]hen the Supreme Court expressly or implicitly overrules one of our 

precedents, we have the authority and obligation to declare and implement 

this change in the law.” Stokes, 887 F.3d at 204 (emphasis added) (quotation 

marks omitted). One example of such overruling is “when the Supreme 

Court disavows the mode of analysis on which our precedent relied.” Id. Put 

another way, “Fifth Circuit precedent is implicitly overruled if a subsequent 

Supreme Court opinion establishes a rule of law inconsistent with that 

precedent.” Gahagan v. U.S. Citizenship & Immigr. Servs., 911 F.3d 298, 302 

(5th Cir. 2018) (quotation marks omitted). However, “an intervening 

change in the law must be unequivocal, not a mere ‘hint’ of how the 

[Supreme] Court might rule in the future.” United States v. Alcantar, 733 

F.3d 143, 146 (5th Cir. 2013). “[M]ere illumination of a case is insufficient” 

to abrogate our circuit precedent. United States v. Petras, 879 F.3d 155, 164 

(5th Cir. 2018). Relatedly, “the determination whether a given precedent 

has been abrogated is itself a determination subject to the rule of 

orderliness.” Stokes, 887 F.3d at 205.

After oral argument, another panel of this court issued its opinion in 

Vizaline, L.L.C. v. Tracy, 949 F.3d 927 (5th Cir. 2020). Hines asserts in a 

Rule 28(j) letter that Vizaline resolved whether NIFLA abrogated Hines I. 

The defendants respond that Vizaline abrogated Hines I only to the extent it 

relied on the professional-speech doctrine, but it left the incidental-burden 

doctrine untouched. Id. at 930, 934. 

Vizaline addressed a challenge to Mississippi’s licensing of surveyors. 

Id. at 928. The court stated that NIFLA “disavowed the notion that 

occupational-licensing regulations are exempt from First Amendment 

scrutiny.” Id. The Vizaline court then stated in a footnote: “Our decision in 

Hines v. Alldredge, 783 F.3d 197, 202 (5th Cir. 2015), adopted the professional 

speech doctrine. As explained below, Hines’ reasoning does not survive 

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NIFLA.” Id. at 928 n.1. The district court in Vizaline had viewed the 

surveyor regulations as restricting conduct rather than speech, and only 

incidentally infringing on speech, so the district court said claims about the 

regulations were not entitled to any First Amendment scrutiny. Id. at 933. 

The Vizaline court disagreed, holding that general licensing regulations are 

not automatically immune from First Amendment scrutiny. Id. at 934. Thus, 

the court reversed and remanded for the proper conduct-versus-speech 

analysis. Id.

In Stokes, we held that circuit precedent was unequivocally abrogated 

by Supreme Court precedent. 887 F.3d at 204–05. One party argued, 

though, that one of our cases after the Supreme Court’s intervening decision 

reaffirmed our earlier caselaw. Id. at 205. We admitted that “the 

determination whether a given precedent has been abrogated is itself a 

determination subject to the rule of orderliness.” Id. The case relied upon 

by the party, though, was unpublished, and regardless did not appear to 

reaffirm our prior rule. Id. 

Unlike in Stokes, we are presented with a precedential opinion that 

held NIFLA abrogated Hines I. As explained in Stokes, we are to follow a 

prior panel’s determination of whether a Supreme Court case abrogated one 

of our rules. Vizaline, therefore, is our guide. 

Bound by Vizaline, we are no longer bound by Hines I. That means 

Hines’ First Amendment claims may be entitled to greater judicial scrutiny 

than Hines I allowed. The court concluded that “the relevant question is 

whether” the state’s “licensing requirements regulate only speech, restrict 

speech only incidentally to their regulation of non-expressive professional 

conduct, or regulate only non-expressive conduct.” Vizaline, 949 F.3d at 

931. Vizaline declined to give an opinion “on whether the Texas regulation 

at issue in Hines would have been upheld under the proper conduct-versusCase: 19-40605 Document: 00515658372 Page: 7 Date Filed: 12/02/2020
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speech analysis.” Id. at 934 n.9. As the Vizaline court did, we reverse and 

remand for the district court to make the initial evaluation of whether 

conduct or speech is being regulated. Id. at 934. 

II. Equal Protection 

In Hines I, we addressed a slightly different equal-protection question 

from the one before us now. Hines’ original claim was predicated on the idea 

that the physical-examination requirement treated veterinarians engaging in 

telemedicine differently than other veterinarians. Hines, 2014 WL 11320417, 

at *5. We rejected this claim, holding: 

[T]he requirement that veterinary care be provided only after 

the veterinarian has seen the animal is, at a minimum, rational: 

it is reasonable to conclude that the quality of care will be 

higher, and the risk of misdiagnosis and improper treatment 

lower, if the veterinarian physically examines the animal in 

question before treating it.

Hines I, 783 F.3d at 203. Hines’ new claim rests on treating medical doctors 

differently than veterinarians as to their right to engage in telemedicine.1

 

To state a claim for equal protection, “the plaintiff must prove that 

similarly situated individuals were treated differently.” Beeler v. Rounsavall, 

328 F.3d 813, 816 (5th Cir. 2003) (quoting Bryan v. City of Madison, 213 F.3d 

1 Texas’s law for medical doctors does not allow all forms of telemedicine. Section 

111.005 provides that a practitioner–patient relationship may exist and thus allow 

telemedicine services when there is a preexisting relationship, or the practitioner can use 

either synchronous or asynchronous audiovisual technology to interact with the patient. 

TEX. OCC. CODE § 111.005. Thus, even if Texas had the same telemedicine 

requirements for both doctors and veterinarians, Hines would not be allowed to give

individualized advice over non-audiovisual technology like phone or email. The chasm 

between medical doctors and veterinarians, therefore, is not quite as wide as Hines 

suggests.

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267, 276 (5th Cir. 2000)). Being similarly situated is key. “Because the 

clause’s protection reaches only dissimilar treatment among similar people, 

if the challenged government action does not appear to classify or distinguish 

between two or more relevant persons or groups, then the action does not 

deny equal protection of the laws.” Mahone v. Addicks Util. Dist. of Harris 

Cnty., 836 F.2d 921, 932 (5th Cir. 1988). On appeal, the State does not 

challenge the similarly situated element of the equal-protection claim, and we 

will assume without deciding that it is met. Because Hines is not a member 

of suspect class, we consider whether the “classification rationally further[s] 

a legitimate state interest.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). When 

we apply rational basis at the failure-to-state-a-claim stage, we must treat a 

legislative classification “as valid ‘if a court is able to hypothesize a legitimate 

purpose to support the action.’” Glass v. Paxton, 900 F.3d 233, 245 (5th Cir. 

2018) (quoting Mahone, 836 F.2d at 934). 

Behind the Equal Protection Clause is the principle that government 

action should not be arbitrary. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 

564 (2000). Rational-basis review is guided by the principle that we do not 

have “a license . . . to judge the wisdom, fairness, or logic of legislative 

choices.” Heller v. Doe ex rel. Doe, 509 U.S. 312, 319 (1993) (quoting FCC v. 

Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). “When social or economic 

legislation is at issue, the Equal Protection Clause allows the States wide 

latitude, and the Constitution presumes that even improvident decisions will 

eventually be rectified by the democratic processes.” City of Cleburne v. 

Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (citations omitted). 

Accordingly, “[t]he constitutional test for rationality of a legislative 

classification, whether the classes be distinguished in the text of the law or in 

its administration, is whether any rational decisionmaker could have so 

classified.” Stern v. Tarrant Cnty. Hosp. Dist., 778 F.2d 1052, 1056 (5th Cir. 

1985). 

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Though rational-basis review gives broad discretion to legislatures, it 

is not unlimited. The Supreme Court says to presume legislation is valid. 

City of Cleburne, 473 U.S. at 440. We have stated that to uphold a state’s 

classification, a court need find only “a conceivable rational basis for the 

official action.” Reid v. Rolling Fork Pub. Util. Dist., 854 F.2d 751, 754 (5th 

Cir. 1988) (emphasis omitted). Notably, however, we have made clear that 

“rational” still must be actually rational, not a matter of fiction. St. Joseph 

Abbey v. Castille, 712 F.3d 215, 223 (5th Cir. 2013). 

We examine our opinion in St. Joseph Abbey closely because it provides 

a recent and thorough explanation. There, we considered a district court’s 

order enjoining the enforcement of a Louisiana rule that granted funeral 

homes the exclusive right to sell caskets. Id. at 217. A group of monks at an 

abbey constructed and sold wooden caskets. Id. This practice violated the 

state’s rule that only a state-licensed funeral director of a state-licensed 

funeral home could sell caskets to people in the state. Id. at 218. The abbey 

sued, seeking declaratory and injunctive relief based on theories of 

substantive due process and equal protection. Id. at 220. The state argued 

that economic protection of the funeral industry was a legitimate state 

interest, but after a bench trial, the district court disagreed. Id. Applying 

rational-basis review, we affirmed. Id. at 227. 

We explained that “although rational basis review places no 

affirmative evidentiary burden on the government, plaintiffs may nonetheless 

negate a seemingly plausible basis for the law by adducing evidence of 

irrationality.” Id. at 223. We compared the state’s offered rationale to the 

setting and history of the challenged rule. Id. The state’s first articulated 

reason was economic protection of a discrete industry. Id. at 221. We held, 

though, that pure economic protectionism is not by itself a legitimate state 

interest. Id. at 222–23. A law motivated by protectionism may have a rational 

basis, but “naked economic preferences are impermissible to the extent that 

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they harm consumers.” Id. at 223 (quoting Greater Hous. Small Taxicab Co. 

Owners Ass’n v. City of Hous., 660 F.3d 235, 240 (5th Cir. 2011)). 

The state had two additional reasons for the casket rule: consumer 

protection and public health and safety. Id. at 223, 226. The state argued 

that by controlling who could sell caskets, it could police deceptive sales 

tactics and thus protect consumers. Id. at 223. We held that this reasoning 

was irrational. The state did not require individuals to be buried in caskets, 

and the Federal Trade Commission found no evidence of consumer 

deception by third-party casket sellers. Id. at 225. Overall, the structure of 

the law revealed a “disconnect between the post hoc hypothesis of consumer 

protection and the grant of an exclusive right of sale to funeral homes.” Id.

at 226. As for health and safety, we found the reason disconnected from 

reality. Id. The state did not require caskets to be constructed a certain way 

nor did the state require funeral directors to have special expertise about 

caskets. Id. Accordingly, there was no rational relationship “between public 

health and safety and limiting intrastate sales of caskets to funeral 

establishments.” Id. 

“A hypothetical rationale, even post hoc, cannot be fantasy.” Id. at 

223. “[G]reat deference due state economic regulation does not demand 

judicial blindness to the history of a challenged rule or the context of its 

adoption nor does it require courts to accept nonsensical explanations for 

regulation.” Id. at 226. In the end, all that was left of the state’s motivation 

was economic protectionism that actually seemed to harm consumers. See 

id. at 226–27. Despite “try[ing] as we [were] required to do, we c[ould] 

suppose” no rational basis for the challenged law. Id. at 227. We upheld the 

district court’s injunction against the state’s actions against the abbey. Id. 

We do not read St. Joseph Abbey to hold that a plaintiff alleging an 

equal-protection claim is always entitled to present evidence and make it 

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beyond the motion-to-dismiss stage. Indeed, such a reading would ignore 

that a state is not required “to produce evidence to sustain the rationality of 

a statutory classification.” Heller, 509 U.S. at 320. St. Joseph Abbey dealt 

with a “purported rational basis that rose to the level of ‘fantasy.’” Glass, 

900 F.3d at 245 (quoting St. Joseph Abbey, 712 F.3d at 223). In addition, the 

court tried to conceive other potentially rational bases but could not think of 

any. St. Joseph Abbey, 712 F.3d at 227. We do not consider St. Joseph Abbey

to have altered how we conduct rational-basis review; instead, it thoroughly 

applied that standard of review to an irrational law.

Turning now to the statute before us, we remind ourselves that it was 

rational for the state legislature to conclude that an in-person examination of 

an animal reduces “the risk of misdiagnosis and improper treatment.” Hines 

I, 783 F.3d at 203. Hines contends that Texas’s new telemedicine law shows 

our prior conclusion was misguided because Texas now believes expanding 

telemedical services for humans will improve overall care. To the extent 

Hines is claiming that there is a disparity between care for animals that do not 

have access to in-person veterinary care and care for animals that do, that 

claim is foreclosed by our prior opinion. We will not consider anew the 

rationality of treating veterinarians engaging in telemedicine differently than 

veterinarians practicing in person. The new issue is equal protection for the 

State’s choice to allow doctors who treat humans to engage in telemedicine 

but not doctors who treat animals.

Hines tries to rebut a number of conceivable justifications for 

regulating telemedicine differently than televeterinary services. The State 

offers several reasons why Texas would treat veterinarians and medical 

doctors differently, citing several of the reasons conceived by the district 

court. “[H]umans ordinarily can communicate about their own symptoms 

with a doctor via electronic means, whereas animals cannot.” Additionally, 

“humans typically understand human physiology better than animal 

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physiology.” Hines rejects these reasons by identifying inconsistencies such 

as the fact that some humans, like infants, are also unable to speak. 

A classification may be underinclusive or overinclusive and yet survive 

rational-basis review. Harris v. Hahn, 827 F.3d 359, 369 (5th Cir. 2016). The 

Constitution does not require perfect policies to achieve a state’s legitimate 

interests. Id. “When a legislature has a choice of means, each rationally 

related to its legislative purpose, it may constitutionally choose any of them. 

Its choice of one does not render the others irrational.” Stern, 778 F.2d at 

1056. That Texas has taken a different approach for medical doctors and for 

veterinarians is not per se irrational. Id. We find helpful our now-colleague’s 

analysis in a Texas Supreme Court opinion:

It is instructive to consider the U.S. Supreme Court’s 

first occupational licensing case, from 1889. In Dent v. West 

Virginia — which has never been overruled and is still cited 

approvingly — the Court upheld a physician-licensing regime, 

calling it a way to protect “the general welfare of [the] people” 

and “secure them against the consequences of ignorance and 

incapacity, as well as of deception and fraud.” But the Court 

cautioned that constitutional limits exist. Government is free 

to mandate requirements “appropriate to the calling or 

profession,” but not those that “have no relation to such 

calling or profession.” Why? Because that would “deprive 

one of his right to pursue a lawful vocation.” Restrictions must 

have a reasonable connection to the person’s fitness or 

capacity. That explains the High Court’s 1957 ruling in 

Schware v. Board of Bar Examiners, the only time the Court has 

struck down a licensing restriction under rational-basis review. 

In Schware, the Court invalidated New Mexico’s attempt to bar 

a Communist Party member from practicing law: “any 

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qualification must have a rational connection with the 

applicant’s fitness or capacity to practice.”

Patel v. Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69, 110–11 (Tex. 2015) 

(Willett, J., concurring) (footnotes omitted). The key is rational connection.

We agree with the State here that it is rational to distinguish between 

humans and animals based on the species’ differing capabilities. More to the 

point, though, the law’s differentiating between medical doctors and 

veterinarians is a logical distinction, unlike the artificial line-drawing of the 

casket rule considered in St. Joseph Abbey. Texas’s statutory requirements 

for medical doctors are found in Title 3 of the Texas Occupations Code, while 

the requirements for veterinarians are in Title 4. The occupations have 

different governing boards and rulemaking bodies. They require different 

schooling. They treat different subjects, and the treatment sometimes differs 

substantially. The professions have their similarities, of course, but in our 

inquiry, there are rational reasons to believe regulations suitable for one 

profession are not constitutionally required for the other. 

One Texas appellate court considered whether the Texas Medical 

Liability and Insurance Improvement Act applied to veterinarians. Neasbitt 

v. Warren, 22 S.W.3d 107, 108 (Tex. App.—Fort Worth 2000, no pet.). The 

defendant in the negligence action, a veterinarian, sought a cost bond under 

the medical liability law, which on its face applied only to health care 

providers or physicians. Id. Observing the different statutory schemes for 

physicians and veterinarians, the court held that the liability law did not apply 

to the claim against the veterinarian. Id. at 112. The court stated, “The 

reality that physicians and veterinarians have traditionally been licensed and 

regulated by entirely separate state boards and under entirely different 

statutes provides further support for differentiating between the two 

professions.” Id. at 111. We agree with that sentiment.

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Moreover, unlike the challenged law in St. Joseph Abbey, the physicalexamination requirement for veterinarians is not a protectionist measure 

designed to stop veterinarians from competing with medical doctors. See St. 

Joseph Abbey, 712 F.3d at 226–27. Indeed, medical services are not an 

economic substitute for veterinarian services. That means the services are 

not interchangeable. In the antitrust-law context, we could say that the two 

services are not part of the same relevant product market, competing against 

one another. Apani S.W., Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620, 626 

(5th Cir. 2002). Our takeaway is that Texas’s physical-examination 

requirement is not a “naked transfer of wealth” from veterinarians to 

medical doctors because those two professions are not in competition with 

one another to begin with. See St. Joseph Abbey, 712 F.3d at 223. The statelicensed funeral homes could raise prices on caskets because of the state’s 

rule disallowing the abbey from selling caskets in state. See id. at 226. By 

contrast, physicians practicing telemedicine are not able to raise prices due 

to the regulations on veterinarians’ practice of telemedicine. 

It is not irrational for a state to change in stages its licensing laws to 

adapt to our new, technology-based economy. If the Texas legislature finds 

the recently enacted changes on telemedicine successful, it may decide to 

expand those changes to include veterinarians. It is reasonable to have a trial 

period rather than to make a hasty policy change. Though we could conceive 

no rational basis for the law challenged in St. Joseph Abbey, we can conceive 

many rational bases here. The district court properly dismissed Hines’ 

equal-protection claim.

We AFFIRM in part, REVERSE in part, and REMAND for 

further proceedings.

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Jennifer Walker Elrod, Circuit Judge, concurring in part1 and 

dissenting in part:

To prevail at this stage, Dr. Hines must show only that Texas lacks a 

rational basis for prohibiting veterinarians from using telemedicine the same 

way medical doctors can. Because I believe Dr. Hines has made this showing, 

I would reverse the district court’s dismissal of Dr. Hines’s Equal Protection 

claim. 

Under Texas law, a veterinarian must either examine an animal 

directly or visit the premises on which the animal is kept before establishing 

a patient relationship. Tex. Occ. Code § 801.351(b). Only after doing one of 

those two things may a veterinarian treat an animal via virtual means. 

Medical doctors, on the other hand, may form a patient relationship entirely 

through virtual means. Dr. Hines contends that Texas’s different and more 

burdensome requirement for veterinarians practicing telemedicine compared 

to medical doctors practicing telemedicine violates the Fourteenth 

Amendment’s guarantee of equal protection of the laws. 

The Equal Protection clause forbids the Government from giving 

differential treatment to people who are similarly situated, unless the 

Government has a rational basis for doing so. See Nordlinger v. Hahn, 505 

U.S. 1, 10 (1992); Gibson v. Tex. Dep’t of Ins.—Div. of Workers’ Comp., 700 

F.3d 227, 238 (5th Cir. 2012). Here, the only question is whether, accepting 

as true all well-pleaded facts in Dr. Hines’s complaint, he has plausibly 

alleged that he has been treated differently than other similarly situated 

1 I agree with the majority opinion that the case should be remanded to the district 

court so that the regulation at issue can be evaluated under National Institute Of Family & 

Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) and Vizaline L.L.C. v. Tracy, 949 F.3d 927 

(5th Cir. 2020). 

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individuals and he has plausibly alleged that no rational basis accounts for the 

difference. In my view, Dr. Hines has done so and thus, has stated a claim. 

The district court concluded that doctors and veterinarians are 

similarly situated for the narrow purpose of analyzing the laws that concern 

telemedicine. As the district court acknowledged, doctors and veterinarians 

belong to different professions. Nevertheless, both groups provide medical 

advice to living subjects and the benefits and drawbacks of expanding access 

to medical care through telemedicine are the same for both groups. 

While the majority opinion purports to assume that doctors and 

veterinarians are similarly situated with respect to telemedicine laws, since 

this issue was not appealed, the opinion’s analysis places great weight on 

differences between the professions that go to the “similarly situated” 

element. For instance, the majority opinion notes that the occupations have 

different governing boards and rulemaking bodies and that they attend 

different types of educational institutions for their training. However, the 

district court expressly considered that “doctors and veterinarians are 

subject to different licensing boards and are considered separate professions” 

when it decided that that the “similarly situated” element was met. The 

majority opinion “assumes” this holding but then undercuts it to support the 

conclusion that Texas’s telemedicine laws pass rational basis review. I agree 

with the magistrate judge and district court that veterinarians and doctors are 

similarly situated regarding regulation of their use of telemedicine.

I would further hold that the state has failed to demonstrate a rational 

basis for their disparate regulation, at least at this stage of litigation.2 When 

we conduct a rational basis review, legislation is presumed valid, but a 

2 The magistrate judge concluded that Texas lacked a rational basis, but the district 

court held that Texas did have a rational basis. 

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presumption is not a guarantee. See City of Cleburne v. Cleburne Living Ctr., 

473 U.S. 432, 440 (1985); St. Joseph Abbey v. Castille, 712 F.3d 215, 223 (5th 

Cir. 2013). “[A]lthough rational basis review places no affirmative 

evidentiary burden on the government, plaintiffs may nonetheless negate a 

seemingly plausible basis for the law by adducing evidence of irrationality.”

St. Joseph Abbey, 712 F.3d at 223. A “hypothetical rationale, even post hoc, 

cannot be fantasy.” Id. When a plaintiff provides a court with undisputed 

context that betrays the otherwise rational basis the state has offered, the 

state can no longer expect the court’s deference. Rational basis review is a 

level of scrutiny, not a rubber-stamping exercise. See Harris Cty. v. CarMax 

Auto Superstores Inc., 177 F.3d 306, 323 (5th Cir. 1999) (“[T]he rational basis 

test ‘is not a toothless one.’”) (quoting Mathews v. Lucas, 427 U.S. 495, 510

(1976)). 

St. Joseph Abbey was a recent and standard application of rational basis 

review in action. In that case, an abbey of Benedictine monks who sold 

handcrafted caskets challenged the state of Louisiana’s rules that allowed 

only state-licensed funeral homes to sell caskets to people in Louisiana. St. 

Joseph Abbey, 712 F.3d at 217–18. Louisiana offered three seemingly plausible 

bases for the challenged rules: economic protection of the funeral industry, 

consumer protection for casket purchasers, and public health and safety for 

casket purchasers. As to the first rationale, our court in St. Joseph Abbey ruled 

that economic protection of a favored industry is not, on its face, a legitimate 

state interest. Id. at 222–23. As to the second and third rationales, both were 

seemingly plausible. If all rational basis review required was the offering or 

conjecture of a seemingly plausible basis, the court could have stopped there 

and dismissed the monks’ claim.

Instead, the court considered the context that the monks put forward, 

which negated both of the state’s bases. For instance, regarding “health and 

safety,” the monks pointed out that Louisiana did not require caskets for 

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burial, did not impose requirements for their construction or design, did not 

require a casket to be sealed before burial, and did not require funeral 

directors to have any special expertise in caskets. Id. at 223–27. These facts 

fatally undermined the logic of Louisiana’s “health and safety” basis for 

permitting only funeral homes to sell caskets to in-state customers.3

St. Joseph Abbey does not mean, as perhaps the majority opinion fears, 

that Equal Protection claims can never be dismissed at the 12(b)(6) stage or 

that survival of a claim at the 12(b)(6) stage is equivalent to a judgment as a 

matter of law in favor of the plaintiff. In cases where the state provides a 

rational basis for the challenged law and the plaintiffs are unable to negate the 

basis, the case will be dismissed. But where the state provides only a 

theoretically plausible rationale and the plaintiff is successful in affirmatively 

undermining the logic that makes that basis rational, then the claim can 

proceed to an evidentiary stage. In that stage, the state may be able to provide 

evidence or better argumentation that rehabilitates their bases for the 

challenged law or supports new bases. If the state does so, the Equal 

Protection claim later may be dismissed before trial, even though the claim 

survived a motion to dismiss.

In this case, like in St. Joseph Abbey, the state has offered several 

seemingly plausible bases for its differential treatment of veterinarians and 

3 Our precedent contains many more examples of cases where state laws or 

regulations have failed rational basis review. See, e.g., Doe v. Plyler, 628 F.2d 448, 458 (5th 

Cir. 1980), aff’d 457 U.S. 202 (1982) (holding that a Texas statute that had been applied so 

as to deny free public education to children based on their undocumented status violated 

the Equal Protection clause, despite the school district’s asserted justifications); Thompson 

v. Gallagher, 489 F.2d 443, 449 (5th Cir. 1973) (holding that city ordinance requiring that 

any veteran employed by the city have an honorable discharge was not reasonably related 

to the city’s interest in maintaining the quality of its work force, in part because it subjected 

veterans to standards to which nonveterans were not subjected).

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doctors. However, Dr. Hines has offered context that belies the rationality 

of these differences.4

Texas provided three potential rational bases for the differential 

treatment: First, humans’ ability to communicate with their physicians 

enables them to receive better telemedical care than animals. Second, humans 

are more familiar with human physiology and can describe it to the doctor. 

Third, having higher standards for telemedicine for animals is rational 

because of the importance of preventing the spread of zoonotic disease, 

which can pass to humans.

The magistrate judge concluded that the state’s rationales were 

irrational, and aptly explained why in his report and recommendation:

4 The majority believesthe holding of Hines v. Alldredge, 783 F.3d 197, 203 (5th Cir. 

2015) (Hines I) has a preclusive effect on our rational basis review of the telemedicine 

restrictions for veterinarians. Dr. Hines challenged the restriction on Equal Protection 

grounds in his 2013 lawsuit, Hines I, on the basis that he was treated irrationally, being a 

duly licensed veterinarian but forbidden from providing veterinary advice like his 

colleagues who ran brick-and-mortar clinics. The Fifth Circuit rejected the challenge, 

concluding: “it is reasonable to conclude that the quality of care will be higher, and the risk 

of misdiagnosis and improper treatment lower, if the veterinarian physically examines the 

animal in question before treating it.” Hines I, 783 F.3d at 203.

But the situation has since changed. When Dr. Hines brought his initial suit, 

doctors and veterinarians were treated similarly with respect to their practice of 

telemedicine. In 2017, the Texas legislature revised the statutes applicable to medical 

doctors and removed their restriction, allowing medical doctors to establish a doctorpatient relationship solely through electronic means. Veterinarians, however, remained 

subject to the restriction requiring an in-person visit before providing telemedical care. The 

2017 revision to statutes regulating medical doctors changes the posture of this case and 

the effect of Hines I. In short, the holding of Hines I was based on a premise that is no longer 

true: that Texas believes the risks of telemedicine without an initial in-person visit 

outweigh the potential benefits of increased access. We are not bound to again uphold the 

telemedicine restriction merely because it was upheld previously under different 

circumstances.

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If a pediatrician can use telemedicine to treat a three-month old 

infant—based upon medical records, the parent’s description 

of external symptoms and a visual examination of the child—

the Court cannot adduce why a veterinarian cannot do the 

same for a dog, cat, or hamster.

As Dr. Hines argues, “[i]t simply is not rational to allow telemedicine 

without a physical examination for babies but deny the same form of 

telemedicine for puppies on the ground that puppies cannot speak.”5

 Babies 

and other non-communicative adults were intentional beneficiaries of 

Texas’s expansion of telemedicine, not the subjects of unwitting 

overinclusion. Texas has never shown a preference for animals over humans

that would support requiring higher standards for animals’ medical 

treatment. Cf. Strickland v. Medlen, 397 S.W.3d 184, 185 (Tex. 2013) 

(Willett, J.) (holding that dog owners could not recover non-economic 

damages for loss of companionship under Texas tort law because “[p]ets are 

property in the eyes of the law.”).

5 In my view, the magistrate judge’s reasoning is fatal to both the state’s first and 

second rationales. The district court disagreed, accepting both. The district court then 

considered in greater detail and accepted the state’s third rationale that requiring 

veterinarians to physically examine an animal before subsequently treating that animal via 

telemedicine can improve human health by suppressing zoonotic disease. However, this 

rationale simply is not based in reality, considering that the restriction on telemedicine does 

not actually require a veterinarian to inspect an animal for disease during an initial 

examination or even, in fact, require an in-person examination of each animal. A 

veterinarian can begin a veterinarian-patient relationship with an animal as long as he or 

she has visited the premises on which the animal is kept. See Tex. Occ. Code § 801.351(b). 

Furthermore, this theoretical rationale is again betrayed by the fact that medical doctors 

establishing a doctor-patient relationship are not required to physically examine their 

human subjects at all, despite the fact that human-to-human transmission of diseases poses

a far greater risk to human health. If the state’s goal was to reduce diseases affecting 

humans, the existing telemedicine restriction on veterinarians would be a fantastical means 

of achieving it.

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Although the rational basis test is deferential, it does not require us to 

accept “nonsensical explanations for regulation.” St. Joseph Abbey, 712 F.3d 

at 226. The magistrate judge correctly concluded that Texas’s explanations 

are indeed nonsensical. I therefore respectfully dissent.

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