Telemedicine represents a transformative approach to healthcare delivery, leveraging technological advancements to facilitate remote diagnosis, consultation, and treatment.Through modalities such as real-time video conferencing and asynchronous communication methods like store-and-forward mechanisms, telemedicine offers a versatile toolkit for enhancing diagnostic accuracy and therapeutic interventions. However, telemedicine is restricted, in terms of state-specific licensure, in similar ways to in-person medical practice. The court case Shannon MacDonald, MD, et al. v. Otto Sabando challenges telemedicine licensure laws through an argument primarily based on the Dormant Commerce Clause citing that state licensure of telemedicine infringes on interstate commerce. Although MacDonald creates a compelling case, the courts are likely to side against expanding telemedicine provisions due to historical precedents and the Supreme Court’s reluctance to support expansion to Congress’s oversight power due to its conservative lean.
Current physicians in New Jersey are suing the state over telemedicine licensing. The physicians argue that New Jersey Statute 45:1-62(2)(b), which requires telemedicine providers to hold state licensure to treat patients in New Jersey, is unconstitutional. Their argument is contingent on the Commerce Clause, which lies in Article 1, Section 8, Clause 3 of the Constitution and states that Congress has the power “to regulate commerce with foreign nations, among states, and with the Indian tribes.” Implied is the interpretation of the Dormant Commerce Clause, which the Supreme Court has supported before, that congress has the authority to prevent states “from adopting protectionist measures and thus preserves a national market for goods and services.”
The Dormant Commerce Clause prohibits the limitations set by states on interstate commerce. Another significant case that involved a dispute over the Dormant Commerce Clause was Gonzales v. Raich (2005), which found that if something even had the capacity to become interstate commerce, it fell under the purview of the federal government. In the case of Gonzales v. Raich, two California residents who were using doctor-recommended marijuana for serious medical conditions had their cannabis plants seized by DEA agents. After suing, the court sided in favor of the attorney general, deciding that the Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. It was United States v. Lopez (1995) defined three reasons that could evoke the Dormant Commerce Clause: (1) use of the “channels of interstate commerce;” (2) the “instrumentalities of interstate commerce, or persons or things in interstate commerce” (e.g., products actually moving across state lines); and (3) “those activities that substantially affect interstate commerce. In US v. Lopez, once it was decided that gun-free zones would not substantially affect interstate commerce, i.e. reason (3) did not apply, the Court decided in favor of Lopez, arguing that the federal legislation was overbearing and unconstitutional. It could be easily argued that telemedicine falls under reason (1), since it involves the legal standard that interstate commerce principles applied to the internet, seen in American Library Association v. Pataki (1997), which involved a New York law intended to regulate “indecent” material on the internet. The court struck down the law, ruling that the internet is inherently an instrument of interstate commerce and therefore subject to federal rather than state regulation. Additionally, the Affordable Care Act (ACA) granted Congress increased influence over healthcare, establishing a precedent for Congressional oversight in the sector. However, several states challenged the ACA’s constitutionality, arguing it exceeded the enumerated powers under the Commerce Clause. This issue was resolved in National Federation of Independent Business v. Sebelius, where the courts upheld the ACA, affirming Congress’s ability to legislate and intervene decisively in healthcare policy.
The argument for telemedicine to fall under interstate commerce is strong, however the governance of healthcare has been the states’ responsibilities since the inception of the Constitution. The Tenth Amendment of the United States Constitution, framed within the principles of federalism, reinforces the notion of states’ rights by allocating powers not expressly delegated to the federal government to the individual states, known as “police power.” Within this constitutional framework, the Tenth Amendment provides states with the authority to enact laws and regulations aimed at preserving the health, safety, and general welfare of their citizens. Dent v. West Virginia (1889) and Hawker v New York (1898) have reaffirmed the right of states to have authority over their own medical licensure, specifically when the plaintiffs’ arguments have rested on the Dormant Commerce Clause. Another example can be found in Gonzales v. Oregon (2006), where the Court decided that federal law could not interfere with an Oregon law regarding healthcare. The Court sided with Oregon’s Death with Dignity Act, ruling that the federal Controlled Substances Act could not override the state’s law governing physician-assisted suicide. This case upheld states’ rights to regulate medical practices, including controversial ones, within their borders.
Within this framework, medicine is primarily regulated by states rather than at the federal level. States establish rules for licensure, define the scope of practice, and set standards for both in-person and telemedicine care. This decentralized system often restricts physicians to practicing only in the states where they are licensed, creating a patchwork of regulations across the country. While the requirements for licensure vary by state, most mandate a medical school diploma, internship or residency verification, passing a national examination, and in some cases, an additional state-specific exam. To address these challenges, initiatives like the Interstate Medical Licensure Compact (Compact) have been introduced. The Compact allows physicians in participating states to obtain expedited licensure, enabling them to practice medicine in multiple states while adhering to the specific medical practice laws of each. Importantly, even though the initiative clearly involves interstate relationships, it is still operating on a state, not federal basis. Despite such efforts, these measures remain limited in scope, and telemedicine, like traditional medical practice, has historically been subject to these licensure restrictions. However, the advent of the COVID-19 pandemic brought about both temporary flexibilities and permanent changes in telemedicine practices, reshaping the regulatory landscape to meet urgent healthcare needs.
Historically, telemedicine has also had to abide by these restrictions, i.e., physicians could not practice outside of their state. During the COVID-19 pandemic, however, the state of telemedicine went under permanent changes and temporary flexibilities in order to provide healthcare during stay-at-home orders and quarantine. The Department of Health and Human Services (HHS) declared on January 28, 2021, the fifth amendment to the Public Readiness and Emergency Preparedness (PREP) Act, granting permission for healthcare providers licensed or certified in one state to prescribe, dispense, or administer COVID-19 vaccines in any other state or U.S. territory. In New Jersey, Executive Order No. 281 “Authorizes individuals licensed in other states to practice in New Jersey without a New Jersey license. Allow health care providers licensed in other states to obtain New Jersey temporary licensure and provide services to New Jersey patients either through telemedicine or in-person.” However, on August 31, 2022, providers with temporary licenses were no longer allowed to practice in New Jersey, except for respiratory therapists. Even in 2024, COVID-19 continues to claim more lives than the flu, underscoring that the expiration of Executive Order No. 281 was premature. This highlights an urgent need for comprehensive legislation to maintain telemedicine flexibilities and ensure uninterrupted access to critical healthcare services across state lines.
While the MacDonald v. Sabando case highlights a compelling challenge to state-specific telemedicine licensure under the Dormant Commerce Clause, the legal precedents and constitutional framework heavily favor the preservation of states’ regulatory authority. Cases such as Dent v. West Virginia and Gonzales v. Oregon (2006) establish a robust judicial tradition affirming state oversight of medical licensure, while federalist principles embedded in the Tenth Amendment further reinforce this state authority. Although telemedicine arguably falls within the purview of interstate commerce, the governance of healthcare remains deeply entrenched in state jurisdiction. In light of this legal context, it is improbable that the courts will diverge from precedent to rule in favor of MacDonald, further solidifying healthcare regulation as a state-controlled authority. This case underscores the broader conflict between technological advancements and the principles of federalism, suggesting that the future of telemedicine regulation will hinge more on proactive legislative action than on judicial rulings.