Matt Powers
Matt Powers · June 27, 2019

Austin, Texas—In virtually every state, when you get sick and visit your doctor, you can obtain prescribed medication right there in the doctor’s office—a practice known as “doctor dispensing.” Not in Texas. The Lone Star State bans most doctors from dispensing medication. Dr. Michael Garrett wants to use doctor dispensing to improve care and save patients money. Today, he partnered with the Institute for Justice (IJ) to file a lawsuit in Travis County District Court challenging Texas’s ban on doctor dispensing.

This ban isn’t about patient safety; it is about protecting the profits of pharmacies. Texas doctors are banned from dispensing prescription medication unless they work in certain “rural” areas more than 15 miles from a pharmacy. And the law works as intended: Only eight of Texas’s almost 65,000 doctors are eligible to dispense medication, guaranteeing that pharmacies see a healthy stream of people needing medications.

“As a family physician, I’m the first person you call when someone gets sick or hurt,” said Dr. Garrett. “It’s my job to figure out what’s wrong with a patient and prescribe the right medication and treatment. Texas’s dispensing ban just makes it harder for me to do my job.”

Texas’s ban on doctor dispensing is the exception nationally, not the rule. In 45 states and the District of Columbia, doctor dispensing is legal and most doctors report doing it. Because they work in Texas, however, Dr. Garrett could be fined and even lose his medical licenses for attempting to dispense medications to his patients, solely because there are pharmacies near his office.

Research shows that doctors and pharmacies are equally safe when dispensing medication, and that making routine medications more accessible can increase patients’ adherence to their prescribed treatment. That is why the Texas Medical Association seeks to repeal the state’s dispensing ban.

“Our clients are doctors who just want to dispense safe medication to their patients,” said IJ Attorney Joshua Windham. “But Texas’s protectionist law stands in their way. We’re going to court to strike down this unconstitutional law.”

As other states have repealed similar bans over the past few decades, Texas pharmacy groups have lobbied to keep the state’s ban in place. However, there is no reason to think that doctors in Texas are any less qualified than their peers in 45 other states to dispense medication and doctors who work near pharmacies are just as qualified as their rural peers in Texas to provide medication to patients.

Texas’s ban is not the only example of one group capturing the power of government to keep another group from competing against it. In 2015, IJ won a landmark victory in Patel v. Texas Department of Licensing and Regulation when the Texas Supreme Court struck down the state’s licensing requirements for eyebrow threading. In that case, the state high court held that laws must accomplish something for the general public—not just industry insiders—and that laws cannot be unduly burdensome compared to their public objectives. Texas’s ban on doctor dispensing fails both of those standards—all it accomplishes is the enrichment of private pharmacies at the expense of the broader public and it imposes burdens on patients and doctors that hardly justify helping pharmacies compete.

IJ is currently challenging similar protectionist laws in the healthcare industry in Indiana and South Carolina, where at-home vision tests are banned. And it is challenging Texas’s ban on veterinarians using telemedicine to provide advice online to pet owners around the world.

“The only reason our clients can’t dispense medication to their patients is that pharmacist groups have lobbied lawmakers to protect their bottom line,” said IJ Senior Attorney Wesley Hottot. “The Texas Constitution forbids laws that do nothing more than protect the financial interests of established businesses.”

The case was filed in Travis County Civil District Court against the Texas State Board of Pharmacy and the Texas Medical Board, and their members and executive directors.