The State of Virginia Restricts Women’s Choice—and Men’s, Too

Two Virginia physicians are challenging Virginia’s Certificate of Need process, which restricts who can deliver health care services.

"Women are furious," said Alliance for Progressive Values president Stephanie Rodriguez back in March. She was aptly assessing reaction to Virginia legislation requiring invasive transvaginal ultrasounds prior to abortions, and other efforts to impede reproductive choice.

Rodriguez joined a swelling chorus. Del. Jennifer McClellan declared that politicians should not be "playing games with women’s lives." Former state legislator Katherine Waddell—who helped form a political action committee to defeat lawmakers who supported the ultrasound and related bills—agreed, saying medical decisions should remain “between a woman and her doctor, not the government.” Protesters held vigils and demonstrations at Capitol Square to deliver the same message.

But if women were furious then, they should be positively apoplectic when they read up on a lawsuit being filed today in federal court in Alexandria. Two physicians being represented by the Arlington-based Institute for Justice are challenging Virginia’s Certificate of Need process, which restricts who can deliver health care services in the commonwealth—and which ones.

Dr. Mark Baumel has come up with an innovative way to perform colon-cancer screenings. He already has put it to use in Delaware. But he cannot offer the procedure in Virginia without a permission slip from the state—which the commonwealth has denied. Dr. Mark Monteferrante, a Northern Virginia radiologist, is in the same boat. When he and his partners tried to add a second MRI machine to their office a few years ago, they spent five years and $175,000 trying to get state permission. Virginia said no.

Why did the state deny their applications? Not for health or safety reasons. CON regulations have nothing to do with ensuring that surgical instruments are sterilized or that doctors whose medical licenses have been revoked are not practicing illicitly. They are nothing more than efforts to restrict the supply of medical care.

For example: Five years ago, the Richmond Radiation Oncology Center—a subsidiary of Bon Secours—wanted to move a radiation-treatment device already in use at St. Mary’s Hospital to a cancer center in Hanover. The Central Virginia Health Planning Agency said no. Why? Because VCU’s Massey Cancer Center was already providing radiation oncology services in the Hanover Medical Park and—as a news story noted at the time—"VCU officials object[ed] to the project, which could take some of their business.”

In other words, CON is a racket: Existing health care providers use the state government to stop competitors from horning in on their turf. None of the players would ever put it so bluntly, of course. They dress up the process in dry, bureaucratic terminology about bed capacity and utilization rates and so forth. But at the end of the day, it’s all about using state enforcers to keep the competition away—something the constitution’s Commcerce Clause explicitly forbids.

You don’t have to take the plaintiffs’ word for it. Even the federal government says so. A few years ago the Federal Trade Commission and the Department of Justice released a hefty report on improving health care. Second on the long list of recommendations: “decrease barriers to entry.” Certificate-of-Need regulations, the report said, are “not successful in containing health care costs,” they “pose serious anticompetitive risks,” and “market incumbents can too easily use CON procedures to forestall competitors from entering [the] market.” Moreover, “empirical studies indicate that CON programs generally fail to control costs and can actually lead to price increases [and] risk entrenching oligopolists and eroding consumer welfare.” How often do you hear government entities arguing for less government intervention?

And how did all this come about? Washington forced states to adopt CON programs—through federal funding and other means—back in the 1970s. It did so because Medicare and Medicaid reimbursed providers on a cost-plus basis. So the more doctors and hospitals spent, the more money they could get from Uncle Sam.

Washington used the CON framework to restrict expenditures. But it long ago switched from the old payment system to a fee-for-service model. Congress abandoned CON back during the Reagan administration, and 14 states repealed theirs. Lobbying by incumbent providers has kept the racket going in the rest, including Virginia.

But it’s not just incumbents who exploit the system. Last year Planned Parenthood wanted to add two operating rooms to its Virginia Beach facility so it could offer gynecological surgeries to poor women. Anti-abortion activists fought the proposal. The America Life League circulated a notice that “Planned Parenthood...has requested that the Virginia Department of Health approve a Certificate of Public Need...which would allow Planned Parenthood to expand its facility on Newtown Road in Virginia Beach....The final decision...is to be made by Dr. Karen Remley, Virginia Health Commissioner...Please take a few minutes to e-mail Dr. Remley...and ask that Planned Parenthood’s request for expansion be denied.”

Remley granted the permit anyway. Yet the episode provided further proof that the CON approval process, which costs about $20,000 on average, invites abuse. Pro-choice activists are right when they say the government should not make doctors perform particular procedures. Well, prohibiting doctors from practicing is just as bad. It’s time to end Virginia’s CON regime, for the sake of women’s medical choice—and men’s, too.

A. Barton Hinkle is a columnist at the Richmond Times-Dispatch, where this article originally appeared.

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  • ||

    You had me scared there for a minute. I thought you were gonna tell me that they wanted to stick the wand up dude's butts.

  • sarcasmic||

    Commcerce Clause?

  • anon||

    I thought it was the "good and plenty" clause.

  • ant1sthenes||

    It's the "good and hard" clause.

  • anon||

    no, that's fast and furious.

  • NSFW||

    the "Whatever the Fuck We Want to Do" Clause is a better name

  • mr simple||

    Maybe that c is invisible (and silent) to everyone else.

  • Mo' $parky||

    In other words, CON is a racket

    Well duh, it's right there in the acronym.

  • niobiumstudio||

    It blows my mind that nobody has brought this to court before under commerce clause. They have been doing this for over 20 years and not a single doctor took them to court?

  • perlhaqr||

    Who would dare? They might just regulate you out of business entirely.

  • John Tagliaferro||

    All restrictions in personal choice, be they services offered or services accepted, are rooted in authoritarian socialism. The example bears no resemblance to laissez-faire, free-market, live-and-let-live at all. Added Socialist bonus, the government profited from preventing the doctor from providing services.

  • o3||

    so then good parenting may be described as authorian socialism...unless its ok for toddlers to stick a fork into the electric socket

  • sarcasmic||

    You obviously did.

  • Robert||

    I didn't. I put a key in. My observ'n: "Hot!"

  • anon||

    unless its ok for toddlers to stick a fork into the electric socket

    I love how you equate taking care of a toddler to the need for an authoritarian state.

    Part of me wants to laugh this off and say "Well, if the kid's dumb enough..." But, I digress:

    A toddler has no capacity for reason; it's brain has not developed enough yet to comprehend the consequences of its actions. An adult has. There's a difference here, mr. strawman propagator.

  • o3||

    john didnt make that distinction instead opting for the all-inclusive "all restrictions..."

  • R C Dean||

    Sure. The difference being, of course, that toddlers aren't adults, and, well, adults are.

  • sarcasmic||

    growing old != growing up

  • anon||

    Especially if you're a midget.

  • Pound. Head. On. Desk.||

    so then good parenting may be described as authorian socialism...unless its ok for toddlers to stick a fork into the electric socket

    I would itemize the problems with that except the absurdity peaks right at the beginning, a toddler shouldn't have access to a fork or electricity, much less both. But they only do it once.

  • ||

    Of course being the parent of a toddler is an exercise in, at best, minimal authoritarianism. But we are fucking adults and we don't need Uncle Sugar deciding shit for us.

  • mr simple||

    empirical studies indicate that CON programs generally fail to control costs and can actually lead to price increases [and] risk entrenching oligopolists and eroding consumer welfare.

    You mean monopolies get to charge more and offer less than firms in a competitive market? Who could have possibly known that, besides anyone that's taken an intro econ course or thought about it for 5 minutes?

  • anon||

    I was playing Diablo 3 the other day and noticed something funny about monopolies:

    They recently introduced "general" chat with the last patch. Initially various vendors were peddling 1mil gold for 30 dollars. With the introduction to a vast audience that wanted the product, in just 2 days, the price has dropped to about 10 bucks.

    I don't have a point, except it was really interesting to see the market in action.

  • mr simple||

    I would say it's probably more likely due to buyers having better knowledge about their options of people to buy from, thus increasing competition, rather than an increase in demand, which, ceteris paribus, would increase the price.

    But, yes, it's amazing how quickly the market can work on its own, all due to people looking out for their own best interests.

  • anon||

    I would say it's probably more likely due to buyers having better knowledge about their options of people to buy from

    Well yeah, that was kinda my observation; a broader audience rather than relying on a search engine to provide you with a result, often buried under piles of shit you have no interest in.

  • mr simple||

    oh, sorry, I misread your "vast audience" sentence.

  • R C Dean||

    Its worse than that, mr. s. Back when I was working on the repeal of Wisconsin's CON, I walked around a study showing that choking off the flow of capital investment into healthcare (which is what CON does) correlates with lower quality healthcare and worse outcomes.

    I mean, who could have seen that coming?

  • ||

    Hell I was taught that in my 6th grade history class in publik skool.

  • ||

    Holy.Fucking.Hell. Certificates of need??? I had not heard of this Orwellian horseshit before. I know you all think I am extreme, but I think this is the kind of thing someone should be shot over. In public. On TV.
    I rarely get angry anymore reading this stuff but I got so goddamn mad I couldnt finish the article.

    Certificates of Need? CON? What individual came up with this shit?

  • robc||

    Illinois has it too, IIRC. Reason had an article a few years back about someone being unable to build a hospital because Illinois didnt need any more hospitals.

    I think my reaction then was the same as yours now.

  • anon||

    Holy.Fucking.Hell. Certificates of need?

    I know these same certificates are required to build a hospital... Also: Didn't RTFA.

  • perlhaqr||

    I hear you. I read about someone who uses the power of the state to keep his competition at bay, and I think "Now there's a fellow who could use his throat slit as a lesson to others."

    "VCU officials object[ed] to the project, which could take some of their business.”

    Fuck those people. Really. Godsdamnit.

  • Mike Gray||

    The AMA has essentially been doing something similar for decades, except they just limit the supply of doctors directly. There is no substantial difference between that and what OPEC does in controlling the supply of oil from the middle east to favorably affect the price of crude.

    I simply can't understand why anyone in this day and age can honestly ask why the price of health care is so high. Between the AMA and CON regulations and any of a bunch of other separate regulations, it's not difficult to see how easy it is to keep competition artificially low and prices artificially high.

    Here in my location in Texas, it can take weeks or longer to get in to see a doctor because, as told by a local doctor, there are serious shortages in doctors here. Naturally, that also corresponds to higher prices.

    It sickens me when people scream for things like Obamacare because most people can't afford healthcare costs. Well, how about we fix the reasons that costs are so artificially high, instead of just trying to figure out ways to foot the bill? Only politicians and government can engage in thinking that is so backward. Though, I guess it helps that the politicians are absolutely complicit in the whole mess.

  • JW||

    But if women were furious then, they should be positively apoplectic when they read up on a lawsuit being filed today in federal court in Alexandria. Two physicians being represented by the Arlington-based Institute for Justice are challenging Virginia’s Certificate of Need process, which restricts who can deliver health care services in the commonwealth—and which ones.

    I'm sorry, but you clearly don't understand the definition of "choice."

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    But if women were furious then, they should be positively apoplectic when they read up on a lawsuit being filed today in federal court in Alexandria. Two physicians being represented by the Arlington-based Institute for Justice are challenging Virginia’s Certificate of Need process, which restricts who can deliver health care services in the commonwealth—and which ones.

  • maillot de bain magasin||

    In other words, CON is a racket: Existing health care providers use the state government to stop competitors from horning in on their turf. None of the players would ever put it so bluntly, of course. They dress up the process in dry, bureaucratic terminology about bed capacity and http://www.ceinturesfr.com/ utilization rates and so forth. But at the end of the day, it’s all about using state enforcers to keep the competition away—something the constitution’s Commcerce Clause explicitly forbids.

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    But if women were furious then, they should be positively apoplectic when they read up on a lawsuit being filed today in federal court in Alexandria. Two physicians being represented by the Arlington-based Institute for Justice are challenging Virginia’s Certificate of Need process, which restricts who can deliver health care services in the commonwealth—and which ones.

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