How regulation hurts—literally


Author: Timothy Sandefur

A PLF Liberty Blog reader forwarded this article from today’s Slate, about how Alabama regulators are considering a rule that would bar trained nurse practitioners from treating patients who suffering from intense pain—to protect the economic interests of osteopaths and anasthesiologists. The proposed rule would define “the interventional treatment of pain” as “the practice of medicine,” meaning it’s off limits to people without a state medical license.

The rule is, supposedly, intended to protect the public from unqualified people administering medicine, and obviously that is a legitimate purpose. The very first Supreme Court case to uphold the constitutionality of licensing, Dent v. West Virginia, over a century ago, was about the licensing of doctors. But, as Justice Field wrote in that case, the qualifications that the state requires must be “appropriate to the calling or profession, and attainable by reasonable study or application…. [W]hen [licensing laws] have no relation to such calling or profession, or are unattainable by such reasonable study and application…they can operate to deprive one of his right to pursue a lawful vocation.” And the problem with regulations of any sort, but particularly occupational licensing, is that it is routinely exploited by private interest groups who want to prevent economic competition. They never come out and say that’s what they’re doing—they always claim that what they’re doing is to protect the general public. But as Sir Edward Coke said four centuries ago, when talking about this same problem, these special interest groups are like a man in a rowboat, who “looks one way and rows another; pretends public benefit—intends private.”

It’s especially disturbing when we see this phenomenon at work in the realm of pain treatment. Government already intrudes in many ways that deprive people of the pain treatment that they need—condemning countless people to intense suffering. The FDA, for instance, frequently sits on potential treatments for years, or bans them outright, while people linger in needless pain. Doctors afraid of becoming casualties of the drug war resist prescribing medication for pain. Courts have ruled that people have no constitutional right to use experimental treatments for their pain. These people are actually suffering, right now, in ways that medical science actually doesn’t fully understand. But we do know some things that we can do to improve their condition—things these people want and need—and things government does not allow us to do…supposedly for the patient’s own good.

Occupational licensing is often defended on the theory that it protects consumers. In fact, there’s good reason to debate that, even when it comes to doctors. But at the very least, we need all branches of the government, including the judiciary, to do what’s necessary to ensure that restrictions on occupations—whether it be the practice of medicine, or the practice of pest control, or the practice of interior designactually protect the general public, instead of the private interests of established, politically influential cartels. Sadly, thanks to the rational basis test courts use today, the judiciary refuses to pay serious attention to these issues.

Update: By the way, if you want to help patients in their fight for their right to try experimental medical treatments, check out the Abigail Alliance.