Sixth Circuit Rules Ohio Chiropractors Must Wait 30 Days Before Soliciting Injured Drivers

(Pixabay image via Courthouse News)

CINCINNATI (CN) — An Ohio law that requires chiropractors to wait 30 days before contacting potential patients after automobile accidents or crimes does not infringe the health care providers’ First Amendment commercial speech rights, the Sixth Circuit ruled Thursday.

The ruling was published just one week after the case was argued, and relied almost entirely on earlier precedents established by the circuit court based on similar laws in other states.

The Ohio regulation in statute 1349.05, passed as part of the 2020–21 biennial budget bill. It prevents chiropractors and other health care providers from directly contacting individuals involved in car accidents or crimes until 30 days after the accident, except via the U.S. Postal Service. The regulation went into effect in October 2019. 

A group of chiropractors and one patient referral service sued the State of Ohio, but were denied a preliminary injunction by a federal judge.

Thursday’s ruling by U.S. Circuit Judge Julia Gibbons upheld that decision.

Gibbons, a George W. Bush appointee, applied intermediate scrutiny during the interpretation of the statute and based her analysis on the four-part test established in the 1980 U.S. Supreme Court case Cent. Hudson Gas and Elec. Corp. v. Pub. Serv. Comm’n of N.Y.

She cited the Sixth Circuit’s own rulings in Capobianco v. Summers and Chambers v. Stengel, both of which dealt with similar restrictions in Tennessee and Kentucky, respectively.

“It is undisputed that 1349.05 withstands First Amendment scrutiny under the Central Hudson test, ” Gibbons said. “It is undisputed that 1349.05 restricts truthful communications and thus satisfies Central Hudson’s first prong. And Ohio’s asserted interest in protecting the privacy of recent accidents and crime victims is certainly substantial.”

She said the third and fourth prongs were also satisfied. 

“Just as the analogous restrictions of Florida Bar, Capobianco, and Chambers directly advanced the government’s substantial interests, 1349.05 directly advances Ohio’s substantial interest in protecting the privacy of recent accident or crime victims because, during the thirty-day aftermath of an accident or crime, the statute limits intrusions on that privacy by health care practitioners and their agents.”

“Finally, 1349.05 is narrowly tailored in satisfaction of the fourth prong,” she added. “The statute only restricts the most intrusive, direct types of solicitations – in person, telephonic and electronic – as opposed to indirect, public-facing communications such as television or billboard advertisements. And it lifts those restrictions after thirty days, at which point the victim’s trauma or other distress related to the incident has presumably subsided, at least to a degree.” 

Gibbons similarly rejected the chiropractors’ equal protection arguments and ruled that while health care providers are singled out in the regulation, their reliance on “direct solicitation of recent accident victims” allowed the Ohio legislature to craft such a narrow law.

“In any case, Ohio does indeed regulate other professionals in a similar manner,” Gibbons concluded. “For example, the Ohio Rules of Professional Conduct bar lawyers from ever soliciting business in person, by telephone, or by live electronic means. That Ohio regulates these professions through separate instances of rulemaking is not only constitutionally permissible but also expected.” 

Senior U.S. Circuit Judge Richard Suhrheinrich, an appointee of George H.W. Bush, and U.S. Circuit Judge John Bush, a Donald Trump appointee, also sat on the panel and concurred with Gibbons’ opinion.

Attorney Paul Flowers, who argued on behalf of the chiropractors, said in a statement they were disappointed with the outcome of the appeal

“But we look forward to finding out whether the Justices of the Supreme Court will agree to hear this controversial issue,” Flowers said. “We are pleased that our clients have had more success in the state courts.”

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