A provision in a Missouri law that prevented pharmacists from counseling patients against using hydroxychloroquine and ivermectin, medications that became political flashpoints during the COVID pandemic, has been ruled unconstitutional.
U.S. District Judge Greg Kays ruled that a section of the 2022 state law, which prohibited pharmacists from contacting doctors and patients “to dispute the efficacy” of the two drugs, violates the First Amendment of the U.S. Constitution.
In his March 28 ruling, Kays issued a permanent injunction against the portion of a law he said amounted to a viewpoint-based regulation of speech.
“A pharmacist who contacts a doctor or patient to tell them that the Food and Drug Administration (FDA) has not approved either drug to treat a particular disease, such as COVID-19 or cancer, may be professionally disciplined, including losing her license,” the judge wrote. “But a pharmacist who contacts a doctor or patient to tout the efficacy of either drug for a purpose the FDA has not approved, such as COVID-19 or cancer, may not be sanctioned.”
Kimberly A. Grinston, executive director of the Missouri Board of Pharmacy, said the court’s ruling was “under review.” She referred questions to the state attorney general’s office. Matthew J. Tkachuk, the assistant state attorney general defending the pharmacy board in the lawsuit, could not be reached for comment. It is unclear whether the state plans to appeal.
Adam E. Schulman, the Virginia lawyer who represented the St. Louis pharmacist who was the plaintiff in the lawsuit, said his client got exactly what she was asking for: a permanent end to the law.
“She was concerned about the slippery slope of laws like this turning into things larger than one or two medications,” Schulman said.
The Missouri General Assembly adopted the statute dictating what pharmacists were allowed to say about the drugs in 2022, near the height of the COVID pandemic. Earlier in the pandemic, then-President Donald Trump had encouraged the use of both hydroxychloroquine, an antimalarial drug, and ivermectin, an antiparasitic medication, to treat the virus.
But there is no evidence the medications helped fight against COVID. And health agencies warned that using them to treat the virus could be dangerous. In 2020, the FDA said that hydroxychloroquine could cause heart rhythm problems and should not be used outside a hospital setting. The agency also cautioned people against using ivermectin formulated for animals.
Still, as the medications were promoted across right-wing media and on social media, prescriptions soared and they gained political importance for people who supported Trump.
That’s the environment that encouraged Republicans in the Missouri legislature to pass the bill that explicitly banned pharmacists from speaking to patients about the potential dangers of using the drugs off-label.
Another part of the same statute prohibits regulators from taking disciplinary action against someone who dispenses the medications, but that portion of the law is not included in the March 28 injunction.
Kays’ ruling only applies to the second sentence of the statute: “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.”
Soon after Missouri Gov. Mike Parson signed the bill into law in June 2022, St. Louis pharmacist Ashley Stock sued, arguing it violated her First Amendment rights. In response to that lawsuit, Kays issued a preliminary injunction in August 2022, meaning the law has not been enforced.
Last year, the state board of pharmacy offered guidance about how it would enforce the law if it did take effect. A memo with that guidance remains on the board’s website.
It reads in part: “Pharmacists have a responsibility to communicate with patients and providers in an accurate and competent manner. Pharmacists also have a duty to exercise their clinical judgment when consulting with prescribers and patients to ensure patient safety consistent with the standard of care, current FDA guidance, or evidence-based scientific data/research.”
The board’s guidance may have been meant to persuade the court that the board would not infringe on pharmacists’ professional responsibilities when it enforced the Missouri statute. But Kays rejected that argument in his ruling, saying that the board guidance, issued two years after Stock filed her lawsuit, provided no guarantee that Stock’s and other pharmacists’ free-speech rights would be protected.
This story was originally published by The Beacon, a fellow member of the KC Media Collective.
