IJ Fights CON Job in Virginia

A hallmark of IJ’s approach to litigation is that we never merely ride the wave of public opinion; instead, we file cases that transcend tired ideological divides and that make differences for real-world clients.

There is no better example of this than our latest economic liberty challenge, which takes us into the heart of the national healthcare debate. As experts and pundits ask what the federal government can do to expand access to healthcare, missing from the debate is any discussion about what state governments can stop doing to achieve this end.

The answer to that question, it turns out, is “a lot.” In 36 states and D.C., it is actually illegal to offer new healthcare services or purchase certain kinds of medical equipment without obtaining special permission from the government. These laws—called certificate of need or “CON” programs—establish government-imposed monopolies of service for favored established businesses. Before new healthcare services may open their doors, they must first prove to the state that their service is “necessary”—which, all too often, is simply code for proving that they won’t take any customers away from an existing business.

Virginia, which imposes enormous burdens on doctors who want to provide safe and effective medical treatment in the state, is one of the worst offenders of these CON laws. The results are predictable: higher prices and fewer choices for patients, and bigger paychecks for industry insiders.

That is why the Institute for Justice filed suit on behalf of a group of doctors from up and down the East Coast who want to provide innovative medical services in Virginia. Whether they want to provide ordinary radiology services, like the Maryland-based doctors of Progressive Radiology, or cutting-edge technological innovations, like Dr. Mark Baumel, who has pioneered what he calls an “integrated virtual colonoscopy,” the story is the same. These doctors want to earn an honest living while providing Virginians with top-flight medical care. And they are being blocked from doing so because of Virginia’s arbitrary and unconstitutional CON law.

To be clear, Virginia has no objection to any of the services our clients want to provide; state officials agree that these are safe and effective medical treatments, and all medical care would be provided by state-licensed doctors. Virginia only objects to our clients working for themselves.

The central idea of our litigation is simple: Doctors and patients—not state officials—are in the best position to decide what medical services and equipment are needed. And, even in the midst of rancorous debate over federal healthcare reform, it seems like people from across the political spectrum can agree on one thing: When private citizens want to invest in innovative and effective healthcare services, the last thing the government should do is stop them. Armed with these basic insights, IJ has set out to shake up the healthcare debate and create real change for patients—first in Virginia, and soon nationwide.

Robert McNamara is an IJ senior attorney.