Stupid Laws Cause Dangerous Hospital Shortages

Despite popular misconception, this is not a pro-choice vs. pro-life situation.

This week, the American Civil Liberties Union (ACLU) filed a federal lawsuit alleging mistreatment of a woman in the days leading up to her miscarriage at a Catholic hospital in Muskegon, Michigan. The ACLU accuses Mercy Health Partners of negligence for, among other things, failing to direct Tamesha Means to a hospital that could have safely terminated her nonviable pregnancy after her water broke at only 18 weeks gestation.

The details of the hospital staff's conduct can be found in the complaint. According to the ACLU, Means miscarried as Mercy Health staff members were preparing to discharge her—for the third time in two days.

It might be tempting to view the lawsuit as another attempt by pro-choice activists to force pro-lifers to subsidize or participate in conduct inimical to their moral convictions. But the facts of the case may well point to negligence. I make no claim either way.  

Instead, I wish to point out that Tamesha Means could not have easily gone to another hospital, perhaps one offering the full range of women's health services, because there is no such hospital. Mercy Health is the only hospital in Muskegon County (population 170,000) and the only one within 30 minutes of Means' home.

Michigan is one of 28 states that artificially caps the number of hospital beds available in a given region. To open or expand a hospital, health providers must first obtain a "certificate of need" (CON) by convincing state health planners that there is a need for more beds. (Another eight states have CON laws, but have rescinded their rules on hospital beds.)

CON proponents argue that providers will fill every bed they build room for, so restrictions on hospital bed inventories are necessary to hold down costs. Planners also want to ensure the number of beds is sufficient to meet a community's needs. Michigan thus employs a complicated formula purported to arrive at the precise number of beds necessary to supply, but not oversupply, the market.

Using the formula, Michigan's Department of Community Health has determined that the Muskegon region has too many beds—exactly 203 too many, in fact. Thus, any potential competitor wishing to enter the market would certainly be denied permission.  

Of course, eliminating waste is all to the good. But labeling all health care delivered after a certain point excessive is ham-handed. One wonders what planners think is happening in the 203 extraneous beds—each day all year. Is each patient who makes use of those beds receiving extraneous care? Of course not—some varying portion of the cost of care for every patient who walks through the door is inflated or otherwise inefficient.

Using certificate-of-need laws to combat costs is an attempt to treat the symptom while ignoring the disease. Moreover, it's a futile attempt. According to the Federal Trade Commission and multiple academics, the preponderance of the evidence suggests CON laws do not actually restrain health costs.

Despite this evidence, CON laws have their defenders. State hospital lobbies, like the Michigan Health & Hospital Association, naturally welcome rules that protect their profits and clobber potential rivals. Other CON proponents are well-intentioned good-government types who do not trust competition to bring about good outcomes for patients.

But perhaps Tamesha Means would have been better served if the state allowed a competing hospital or two to serve Muskegon.

According to the ACLU, many Catholic hospitals will not terminate a pregnancy until the fetus' heartbeat stops of its own accord—even when the mother's life is at risk. Maybe that's wrong. But using the courts to force Catholic providers to violate deeply held beliefs seems a fruitless strategy. Catholic hospitals are unlikely to implement the ACLU's policy wish list no matter who wins the case.

A truly pro-choice plan of action would focus on repealing laws that circumscribe patients' ability to choose from a variety of health providers.