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have nothing to do with ensuring that surgical instruments are sterilized or that doctors whose medical licenses have been revoked are not practicing illicitly.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.