Overcoming Hurdles, the IJ Way

The goal of IJ’s litigation is to set important constitutional precedent in state and federal courts. To do that, though, we often must cut through a thicket of procedural obstacles before a court even addresses the merits of our claims. We often spare readers the details of these fights, but it is important, every now and then, to talk about exactly what these obstacles are—not just to demonstrate how outrageous they can be, but to illustrate how much of an uphill fight it is to vindicate liberty in the courts.

We are facing one such obstacle in our ongoing South Carolina court battle on behalf of the internet startup Opternative. Opternative offers a simple promise: online vision tests from the comfort of your own home. A computer shows you a series of images, just like you would see in a vision screening at an optometrist’s office, collects your responses, and emails them to a state-licensed ophthalmologist who, if he decides it is medically appropriate, can write you a new corrective-lens prescription via email.

Opternative’s technology holds real promise to greatly expand people’s access to eye care, but it is also a major threat to the business model of most optometrists. Optometrists are limited-practice eye-health providers who traditionally make a lot of money selling expensive eyeglass frames in the showroom attached to their exam rooms. But an Opternative customer can buy glasses anywhere, including on the internet. Giving consumers that option could cost optometrists millions of dollars in sales.

Unsurprisingly, optometrists are fighting back: In South Carolina, the optometrists’ lobbying organization drafted—and persuaded the Legislature to pass—a law making it illegal to issue prescriptions based on online technologies like Opternative’s.

Because IJ does not take protectionism lying down, we filed suit in South Carolina, standing up for the rights of Opternative and other startup companies to create innovative technologies without being immediately banned by the horse-and-buggy crowd. But, earlier this year, the state trial judge ruled in favor of the government—not because the judge held the law constitutional, but because the judge held that the law had not “injured” Opternative and so the company was not allowed to bring suit.

Hurdles like these make it all the more important that IJ exists to provide entrepreneurs like Opternative (and all our clients) with the resources, wherewithal and know-how to climb over procedural obstacles like these en route to ultimate victory.

Now, to be clear, the law was specifically written to ban Opternative’s technology, and it worked: The company stopped offering its services in South Carolina once the law was passed. But being thrown out of the state was not “injury” enough for the court, which threw out the lawsuit.

We have already appealed this ruling, and we expect to win that appeal. But procedural hurdles like these draw out litigation, requiring more time, effort and money—all just to prove that a small business has the right to be in court in the first place.

Hurdles like these make it all the more important that IJ exists to provide entrepreneurs like Opternative (and all our clients) with the resources, wherewithal and know-how to climb over procedural obstacles like these en route to ultimate victory. And as we achieve these victories, it is always a delight to report here in Liberty & Law that yet another example of government overreach has been struck down.

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