Matt Powers
Matt Powers · October 3, 2023

AUSTIN, Texas—On Friday, in a blow to consumer choice and economic liberty, the Texas Supreme Court refused to grant review in Dr. Michael Garrett’s challenge to the state’s ban on doctor dispensing. Dr. Garrett, represented by the Institute for Justice (IJ), asked the Texas Supreme Court to review his case after an appeals court held the law did not violate the Texas Constitution.

Texas is one of only five states that forbids doctors from charging money for the drugs they dispense, unless they become licensed as pharmacists. The ban applies even to those, like Dr. Garrett, who just want to dispense routine drugs (like antibiotics and allergy medications) and recover their costs (rather than making a profit). Pharmacies, by contrast, can dispense any drug they want at any price they desire.

“Texas’s ban remains as senseless as ever,” said Dr. Garrett. “I only filed this case because I want to help my patients. Doctors throughout the country are allowed to do this and they’re seeing amazing results: It’s convenient, it dramatically lowers costs, and patients are more likely to take their medicine. I can’t grasp how a law that forbids me from helping people would be constitutional.”

IJ filed the case in 2019, arguing that, following IJ’s Texas Supreme Court win in Patel v. Texas Department of Licensing & Regulation, economic laws must benefit the public in the “real world.” The dispensing ban flunks that test because banning doctors from recovering costs on medications they can already give away for free does not make anybody safer. In the real world, all the law really does is protect pharmacies’ profits.

“The dispensing ban is a classic abuse of power,” said IJ Attorney Josh Windham, the lead attorney on the case. “The Texas Constitution forbids laws that sacrifice patients’ health purely to shield pharmacies from competition. It’s a shame the courts didn’t see that—but this fight isn’t over. We’ll press for legislative reform until Texas, like the overwhelming majority of states, gives doctors the freedom they need to best serve their patients.”

This case was part of IJ’s effort to ensure that state courts provide meaningful protections for economic liberty. IJ currently has similar cases challenging protectionist health care regulations in North Carolina and South Carolina. IJ also recently convinced the Georgia Supreme Court to strike down an irrational restriction on lactation consultants.