The ghost who walks . . .

In striking down a regulation of casket-making by a Louisiana monastery, the Fifth Circuit assured: “Nor is the ghost of Lochner lurking about.” St. Joseph Abbey v. Castille, 712 F. 3d 215, 226-27 (5th Cir. 2013). Nevertheless, that fearsome shade surfaced in Hines v. Quillivan, an equal-protection challenge to Texas’s regulation of telemedicine by veterinarians, only to be banished by the panel majority: “It is not irrational for a state to change in stages its licensing laws to adapt to our new, technology-based economy. If the Texas legislature finds the recently enacted changes on telemedicine successful, it may decide to expand those changes to include veterinarians. It is reasonable to have a trial period rather than to make a hasty policy change. Though we could conceive no rational basis for the law challenged in St. Joseph Abbey, we can conceive many rational bases here.”

A dissent saw matters differently, crediting the plaintiff’s argument that “[i]t simply is not rational to allow telemedicine without a physical examination for babies but deny the same form of  telemedicine for puppies on the ground that puppies cannot speak.” No. 19-40605 (revised Dec. 2, 2020).