Protecting Truthful Commercial Speech in Vision Care Networks: Healthy Vision Assoc. v. Abbott

Introduction

In Healthy Vision Association v. Abbott, No. 24-10245 (5th Cir. May 23, 2025), the Fifth Circuit addressed Texas’s House Bill 1696, which restricts what managed vision care plans may say to their enrollees about in-network providers and affiliated retail outlets. Plaintiffs—VSP Insurance Company, the National Association of Vision Care Plans (NAVCP), Healthy Vision Association (HVA), Visionworks of America, and two individual consumers and providers—filed a pre-enforcement challenge under 42 U.S.C. § 1983. They argued H.B. 1696 violates the First Amendment’s commercial speech doctrine, the associational rights of insurers and enrollees, and the Equal Protection Clause of the Fourteenth Amendment. The State officials named as defendants were Texas Insurance Commissioner Cassie Brown, Governor Greg Abbott, and Attorney General Ken Paxton.

The District Court denied the State’s sovereign‐immunity defense as to Commissioner Brown, enjoined enforcement of the statute’s speech restrictions, and allowed the case to proceed. Texas appealed both the denial of immunity and the grant of the preliminary injunction. The Fifth Circuit affirmed in part, vacated in part, and remanded for limited modification.

Summary of the Judgment

The Fifth Circuit’s decision has three principal holdings:

1. Sovereign Immunity / Ex Parte Young: Commissioner Brown may be sued in her official capacity under Ex parte Young because she has a statutory “shall‐enforce” duty and has shown a willingness to carry it out. Governor Abbott and Attorney General Paxton were dismissed on immunity grounds, as their roles involve only general duties to “execute the laws” and not the specific duty or demonstrated enforcement of H.B. 1696.
2. Commercial Speech Claim: The speech restrictions in § 1451.153(a)(4)–(5) target truthful, non-misleading information about discounts, provider affiliations, and product sources. Under Central Hudson, those restrictions are subject to heightened scrutiny and were likely to fail all stages of the four-part test. The statute does not directly advance the State’s proffered interests in consumer protection, competition, or transparency, nor is it narrowly tailored.
3. Preliminary Injunction: Because Plaintiffs demonstrated a substantial likelihood of prevailing on their First Amendment commercial speech claim, irreparable injury from speech suppression, and a public interest favoring free speech, the court affirmed the injunction against Commissioner Brown. It vacated injunction relief as to the Governor and Attorney General, since they are no longer proper defendants.

Analysis

a. Precedents Cited

• Ex parte Young, 209 U.S. 123 (1908): Established that state officers may be sued in federal court for prospective injunctive relief against enforcing laws that violate federal rights.
• Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980): Laid out the four-part test for commercial speech protection.
• Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988): Discussed the high bar for facial overbreadth challenges in commercial speech statutes.
• Allstate Ins. Co. v. Abbott, 495 F.3d 151 (5th Cir. 2007): Held that Texas cannot bar insurers from recommending affiliated repair shops when the information is truthful and not misleading.
• Moore v. Louisiana Bd. of Elementary & Secondary Educ., 743 F.3d 959 (5th Cir. 2014): Reaffirmed the interplay of Eleventh Amendment immunity and Ex parte Young.
• Book People, Inc. v. Wong, 91 F.4th 318 (5th Cir. 2024): Refined the “particular duty” and “demonstrated willingness” guideposts for Ex parte Young defendants.

b. Legal Reasoning

Sovereign Immunity: The court applied the two-step inquiry of Eleventh Amendment immunity: first, whether the official is sued in an official capacity; second, whether Ex parte Young’s narrow exception applies. Commissioner Brown’s duty to “take all reasonable actions to ensure compliance” with H.B. 1696, plus department enforcement letters, constituted the requisite “scintilla” of enforcement to support a pre-enforcement challenge. In contrast, the Governor and Attorney General were charged only with general executive responsibilities, insufficient to bring them within Ex parte Young.

Commercial Speech (Central Hudson Test):

1. Protected speech? Yes. The statute targets truthful, non-misleading statements about lawful services—exactly the kind of speech Central Hudson protects.
2. Substantial government interest? The court assumed (without deciding) that consumer protection, competition, and transparency are substantial.
3. Directly advance the interest? No. Suppressing truthful comparative information runs counter to transparency and choice. As in Allstate, consumer empowerment is better served by additional disclosures rather than a ban on recommendations.
4. Narrow tailoring? No. Texas could achieve its goals by requiring disclosures or warnings rather than a wholesale ban on identifying affiliates or incentives.

Facial Challenge: The statute is not “readily susceptible” to a limiting construction because its plain text forbids all distinctions based on brand, discount, or affiliation, whether or not misleading. Redrafting the law to allow only deceptive speech would improperly usurp the Legislature’s role.

Associational Freedom: The plaintiffs failed to identify a protected sphere of intimate or expressive association. A routine commercial arrangement between insurers and providers does not implicate the core associational safeguards recognized in Roberts v. U.S. Jaycees.

Equal Protection: Vision care plans are treated differently from other health insurers, but that classification survives rational-basis review so long as any conceivable rationale is legitimate and non-arbitrary. Texas’s interest in curbing vertical integration and steering in the vision care market suffices under Williamson v. Lee Optical.

c. Impact

This decision reinforces the strong protection commercial speech enjoys when it is truthful and non-misleading, especially in the health-care context. Texas and other states now must think twice before enacting “anti-steering” or “anti-tiering” statutes that suppress plan communications about in-network providers or affiliated retail affiliates. Insurers, trade associations, and practitioners can challenge such statutes pre-enforcement under Ex parte Young by showing a “shall-enforce” duty and a credible threat of enforcement. Going forward, regulators seeking to protect consumers must craft narrowly tailored disclosure rules rather than flat bans on truthful comparative information.

Complex Concepts Simplified

• Eleventh Amendment Sovereign Immunity: States normally cannot be sued in federal court. But Ex parte Young allows suits against state officials who enforce unconstitutional laws.
• Ex parte Young Exception: A state official can be sued if (1) the suit names the official in their official capacity, (2) alleges an ongoing violation of federal law, and (3) seeks only future relief. The official must have a specific duty to enforce the challenged law and some evidence they will do so.
• Central Hudson Test: Four steps to decide whether the First Amendment protects commercial speech:
  1. Is the speech truthful about lawful conduct?
  2. Is the government interest substantial?
  3. Does the regulation directly advance that interest?
  4. Is it no more extensive than necessary?
• Preliminary Injunction: A quick, temporary court order that stops a law’s enforcement while the case proceeds, granted when plaintiffs are likely to win, face irreparable harm, and when the public interest favors relief.

Conclusion

Healthy Vision Association v. Abbott clarifies two critical points of federal constitutional law: first, a state insurance commissioner with a mandatory enforcement duty can be enjoined under Ex parte Young for enforcing a potentially unconstitutional statute; second, broad “anti-steering” restrictions on managed care plans’ ability to provide truthful, non-misleading information about preferred providers and products violate the First Amendment’s commercial speech protections. In striking down such speech bans, the Fifth Circuit reinforces the principle that transparency and informed choice are best served by disclosure requirements and narrowly tailored rules—not by leaving consumers in the dark. This decision will guide future challenges to similar statutes in health and other commercial spheres.