Back in September of last year, we told you about a recently passed Missouri law (the Gag Rule) that barred pharmacists from proactively telling patients and physicians that hydroxychloroquine and ivermectin are not effective COVID-19 treatments.
The purpose of the law was evident. Despite overwhelming evidence that neither drug was effective against COVID-19, conservative pundits and politicians engaged in a politically motivated, deeply irresponsible, and, sadly, somewhat successful effort to promote them. Missouri sought to take those efforts one step further. Not content to just hawk these unproven treatments, it used the power of the State to prevent pharmacists from providing accurate information about these drugs to patients and prescribing doctors.
As we reported back in September, this law was challenged in federal court by a Missouri pharmacist, Ashley Stock, on First Amendment grounds, and we were sanguine on the lawsuit’s chances. Afterall, the law runs afoul of the First Amendment’s core tenet: that states cannot ban speech because they disagree with its message.
As promised, we have been keeping an eye on the lawsuit, and recently there was significant progress in the case. The federal court ruled in favor of the pharmacist and granted a preliminary injunction prohibiting the State from enforcing the law against any Missouri pharmacists while the lawsuit is ongoing.
Assuming the case is not settled, Ms. Stock will still need to proceed with the litigation to obtain a final injunction, but the ruling, which the state elected not to appeal, bodes well for her and Missouri pharmacists. In deciding to grant the preliminary injunction, the court concluded that Ms. Stock was likely to succeed on her First Amendment claim.
Specifically, the court determined that Missouri had engaged in “viewpoint discrimination”—an egregious form of speech regulation that targets particular views taken by speakers on a subject—and that this was “fatal to the statute’s constitutionality.” The court had little difficulty dispensing with the State’s contrary legal arguments, which it variously described as “thoroughly unpersuasive,” “even less persuasive,” and “def[ying] common sense.” Although not central to the legal determination, the court also made clear that “a variety of reputable sources” from the FDA to NIH advise against the use of hydroxychloroquine and ivermectin to treat COVID-19.
Good news in the courts is hard to come by these days. So, we’re happy to deliver a little.