“There is every reason to think that Kentucky’s [CON] law increases costs, reduces access, and diminishes quality—for no reason other than to protect the pockets of rent-seeking incumbents at the expense of entrepreneurs who want to innovate and patients who want better home health care.”

With this tour de force of an opinion, Federal District Judge Justin R. Walker (soon to be on the D.C. Circuit Court of Appeals) awarded the Institute for Justice a first-round victory late last week in our challenge to Certificate of Need (CON) laws in Kentucky.

CON laws are the mandatory permission slips that entrepreneurs in 35 states must obtain before offering new or expanded health care services. The process of getting a CON resembles full-blown litigation and existing providers exercise what amounts to veto power over new competitors. During the height of the COVID crisis, the entire nation got a good look at the damage these laws have inflicted on our health care system, from hospital bed shortages to insufficient medical equipment to soaring health care costs.

While litigating three CON law challenges in court, IJ mustered a “litigation by letterhead” campaign this spring that urged 20 states and D.C. to suspend their CON requirements and allow health care facilities to respond to the needs of the nation. As part of that campaign, our attorneys conducted a massive amount of research into state CON requirements, which we released this week as a new 200-page national survey. Accompanied by an op-ed in The Wall Street Journal, this report is the legal roadmap that will guide policymakers (and IJ litigators) in acting on a conclusion that is now irrefutable: CON laws are a policy failure and must be dismantled.

As Judge Walker wrote last week, “Entrepreneurs and patients depend on our Constitution to curb irrational state burdens on medicine.” Because of IJ, those constitutional protections have never been stronger—and we will harness them in the months ahead to unleash innovation and competition in an industry that desperately needs both.

Please help drive our efforts at this critical moment by making an online gift to IJ.

Scott

Scott G. Bullock
President and General Counsel
Institute for Justice

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