Shannon MacDonald, M.D., et al. v. New Jersey State Board of Medical Examiners, No. 3:23-cv-23044 (N.J.) Complaint for Declaratory and Injunctive Relief filed December 13, 2023.

Technological advances in medicine have made access to care online through telehealth services available and desirable, particularly in cases where patients’ conditions require expertise that is not available where the patient lives. 

Telehealth, or telemedicine, permits patients and physicians to confer online without respect to geographic limitations. Such services have been available for some time, but demand for telehealth practice can fairly be said to have expanded – if not exploded — during the forced confinement imposed by federal and state Covid-19 pandemic policies. 

During the pandemic, laws and regulations were relaxed so that health care services, including telehealth, could be delivered without the necessity of licensure within each state where services were rendered. 

With emergency provisions ended, the demand for telehealth services, particularly for specialized medical care, has remained high.

Currently a physician who wishes to consult with a client residing outside the geographic area where the physician is licensed must obtain licensure in the state where care is delivered, an expensive process requiring months of review. 

Criminal punishment attaches to violations of licensure laws. Fines run in the tens of thousands of dollars. Loss of authority to practice medicine may result, and with it would likely come loss of professional and social standing.

A parent who seeks life-saving care for a child cannot obtain consultation where licensure barriers prohibit doctors from delivering that care.

Moreover, it is not possible for specialists to predict with accuracy where requests for consultation may originate. Diligence in seeking licensure in multiple jurisdictions is to no avail given that no care may be demanded in such states, while care may be sought in another location where licensure is absent.

Plaintiff physicians in this case, with their patients, object to state preclusion of access to telehealth care.

The doctors and patients allege that the state imposition of licensure requirements for out-of-state physicians violate the U.S. Constitution in several ways.

First, the requirements offend the Dormant Commerce Clause by imposing undue and unjustified burdens on the delivery of care across state lines. U.S. Constitution, Article I, § 8, cl. 3. The somewhat awkward categorization of the “dormant” commerce clause refers to an inference to be drawn from the Commerce Clause itself. ”Dormant” means here that issues can arise under the Commerce Clause without specific federal action.

Second, because the Privileges and Immunities Clause of the U.S. Constitution, Article IV, § 2, cl. 1 demands that the citizens of one state must be permitted to enjoy the privileges and immunities conferred upon them in all other states, the prohibition of use of licensure already in existence through state law offends the Privileges and Immunities Clause.

Third, the telehealth prohibitions offend the First Amendment of the U.S. Constitution. The state licensure regulations restrain speech by parents, patients, and physicians because of content of that speech. Moreover, physician speech is precluded by virtue of their licensure status. 

Fourth, state preclusion of access to telehealth care offends the due process provisions of the equal protection clause of the Fourteenth of Amendment of the U.S. Constitution, as parents cannot exercise their parental rights — including the right to seek and to obtain medical treatment — because of the state restrictions, and parents have no access to timely and complete review of the denial of access to care.

Plaintiffs seek a declaration that New Jersey law violates their rights under the U.S. Constitution and an order enjoining the state from interfering with delivery of telehealth care within the state.

No defense has been submitted to the federal court in New Jersey at this time. The New Jersey Attorney General has sought and obtained an extension of time until February 16, 2024 to respond to the complaint.

MacDonald-M.D.-et-al.-v.-President, N.J. Bd. Medical Examiners, 23-cv-23044 (D. N.J.) Complaint

Constitution of the United States (National Archives)

Amendments 1-10 of the U.S. Constitution (Bill of Rights) (National Archives)

Amendment 14 to the U.S. Constitution (National Archives)