Denial of Medical Choice: Even Worse Than Activists Think

Abortion advocates fear government bureaucrats could use burdensome rules to reduce access to medical care. That's happening already.

Abortion-rights advocates are seriously cheesed off at Virginia Attorney General Ken Cuccinelli for strong-arming the state's Board of Health into approving tough new clinic regulations. The advocates fear government bureaucrats could use burdensome rules to reduce access to medical care.

Actually, government bureaucrats are doing that already. And now they have judicial blessing. Last week a federal district judge rebuffed a lawsuit by two doctors who were challenging the state's arbitrary and capricious control over medical treatment. The state had every right, Judge Claude Hilton said, to restrict patient access to care.

The first doctor, Mark Baumel, performs a less invasive form of colon-cancer screening at his practice in Delaware. But when he tried to offer the same service here in Virginia, the state said no.

The state didn't say no because it thought the procedure was dangerous; it isn't. The state just didn't want Baumel to purchase the requisite CT scanner. Why? Because there were other medical practices nearby that had CT scanners, and the bureaucrats felt letting Baumel have one was – better sit down for this – not necessary.

Much the same thing happened to Dr. Mark Monteferrante. A while back he helped the owners of the Northern Virginia radiology center where he worked buy a second MRI machine. Getting the state's approval for that took five years of begging and $175,000 in filing fees. Then the radiology center was sold. Monteferrante wants to start one of his own. But that would mean purchasing additional equipment – meaning he faces the prospect of another costly, five-year fight.

All this is the result of something called the Certificate of Need process. Virginia's CON regime (called the Certificate of Public Need) gives state officials the power to decide whether, in their infinite wisdom, a particular medical facility or device is needed in a particular area. The idea is that by restricting the supply of medical services, state government can hold down overall spending on health care.

That's the theory. It doesn't work in practice. As the Federal Trade Commission and the Department of Justice concluded in a report on the issue: Certificate-of-need regimes are "not successful in containing health-care costs" and "empirical studies indicate that CON programs generally fail to control costs and can actually lead to price increases."

The report warned that CON requirements also can be anti-competitive. Why? Because the process gives existing health-care suppliers the opportunity to strangle competition in the crib.

Case in point: Five years ago, the Richmond Radiation Oncology Center wanted to move a radiation-treatment device already in use at St. Mary's Hospital to a cancer center in Hanover. To do so it needed CON approval. The state said no: VCU's Massey Cancer Center was already providing radiation oncology services in Hanover, and – in the words of a news story about the issue – "VCU officials object[ed] to the project, which could take some of their business."

A few months ago Baumel and Monteferrante – with an assist from the Arlington-based Institute for Justice – sued to overturn Virginia's CON system. They argued, among other things, that it denies them equal treatment under the law. Virginia's CON process applies to some medical services but exempts many others: doctor's offices, burn care, ambulances, hospice, dialysis, substance-abuse treatment, ultrasound, etc.

They also argued that the CON regime interferes with interstate commerce. It certainly does that, at least according to the logic of Obamacare. If one individual declining to buy health insurance can be said to affect the entire national health-care market, then Virginia's refusal to approve, say, an entire new hospital affects that marketplace to an exponentially greater degree.

Last week Judge Hilton tossed the case. Economic restrictions need to clear only a ridiculously low bar – the "rational basis" test – even when they affect the right to patient choice. As Hilton explained, all that is necessary to pass the test is the belief that something needs fixing, and "it might be thought that the particular legislative measure was a rational way" to go about it. "[A] legislative choice is not subject to courtroom factfinding, but may be based on rational speculation unsupported by evidence or empirical data." In other words, courts must uphold any restriction for which there is even the slightest conceivable excuse.

The Institute for Justice says Baumel and Monteferrante will appeal. If they don't, or if (as seems plausible) higher courts uphold Hilton, then it will fall to the General Assembly to repeal Virginia's CON system.

Leading the charge for repeal should be the state's abortion-rights activists, who routinely insist that medical choices should remain between the patient and her doctor. Those activists contend such choices should not be subject to meddling by third parties who impose their own vague idea of the common social good. Those activists are right. But in Virginia, what the patient wants is irrelevant. So long as the CON system remains in place, the final decision is up to the state.

This article originally appeared in the Richmond Times-Dispatch.