Does the Constitution protect a cancer patient’s right to call his doctor?
When Jun Abell was just 18 months old, he was diagnosed with pineoblastoma—a rare, aggressive brain tumor. After multiple surgeries and rounds of chemotherapy, he was referred to Dr. Shannon MacDonald, a leading pediatric radiation oncologist at Massachusetts General Hospital. Jun’s family moved to Boston for two months while he underwent proton therapy under Dr. MacDonald’s care. The therapy was successful, allowing Jun to move home and resume his childhood.
Years later, Dr. MacDonald continued to care for Jun through periodic telemedicine check-ins to confirm the cancer hadn’t returned. But when New Jersey reinstated a set of telemedicine restrictions it had suspended during COVID-19, it effectively made those calls illegal.
That’s the issue at the heart of Shannon MacDonald, M.D., et al. v. President of the NJ State Board of Medicine, a federal lawsuit brought by Pacific Legal Foundation on behalf of two out-of-state pediatric cancer specialists and New Jersey patients. This week, the case headed to oral argument before the Third Circuit Court of Appeals on whether the case should be dismissed for failure to state a claim.
What New Jersey’s law does
New Jersey requires any physician conducting a telemedicine call with a patient in New Jersey to hold a New Jersey medical license. Those who ignore the rule may face criminal charges, hefty fines, and even the loss of their out-of-state medical license.
For Jun, and for Hank Jennings—a college student from New Jersey who was diagnosed with a rare skull-base tumor and still relies on follow-up calls with specialists in Pennsylvania—the result of this law is a choice between adding expensive trips out of state to the cost of their medical bills or going without care from the doctors who specialize in their rare conditions.
The constitutional case
Represented by attorneys from Pacific Legal Foundation, the doctors and patients argue that New Jersey’s restriction is unconstitutional on multiple grounds. The First Amendment protects the doctor-patient consultation as speech, which New Jersey cannot suppress through licensing rules. The Dormant Commerce Clause bars states from placing undue burdens on interstate commerce—and blocking a Massachusetts doctor from a video call with her New Jersey patient does exactly that. The Privileges and Immunities Clause protects out-of-state citizens from discrimination that lacks adequate justification. And the Fourteenth Amendment’s Due Process Clause safeguards parents’ fundamental right to direct their children’s medical care.
At oral argument
Before the Third Circuit Court of Appeals, PLF attorney Jack Brown emphasized the First Amendment, drawing a sharp distinction between medical treatment and talking about it. New Jersey can require a license to treat patients in the state, Brown argued—but a follow-up phone call between a cancer patient and her specialist is speech, not treatment, and the government can’t use a licensing requirement to make that conversation illegal.
Brown also highlighted the real-world costs the restriction imposes: burdensome out-of-state travel for patients, and a thicket of licensing fees and paperwork for doctors who serve only a small number of patients across state lines.
“We’re confident the law is on our side, and we’re hopeful the court will agree that banning speech between doctors and patients implicates their First Amendment rights,” Brown concluded.
What’s at stake
If Dr. MacDonald’s lawsuit is successful, her victory would deal a significant blow to the state telemedicine restrictions that returned after the COVID-19 pandemic—restrictions that fall hardest on patients with the rarest conditions, precisely those who desperately need out-of-state specialists in the first place.
Ultimately, no one is better positioned to monitor Jun Abell’s recovery than the doctor who specializes in his rare condition. New Jersey shrugs and says that it is entitled to deference in its regulation of the practice of medicine. PLF is asking the court to say otherwise.
