Beet L. Jooz

It's been 14 years since Lee Birchansky first sought to open a cataract surgery center in Iowa. Today a federal court will finally hear the doctor's challenge to the law that let his competitors keep him out of business all that time.

Birchansky is one of four plaintiffs—the others are a second doctor and two patients—challenging the constitutionality of Iowa's Certificate of Need (CON) laws, which require that the state approve the opening of new medical facilities. These laws are supposed to protect patients by preventing medical providers from clustering services in certain areas while leaving others underserved, but in practice they limit the supply and raise the price of health care. Powerful special interests, such as hospitals, often use them to limit competition.

That's what happened to Birchansky, who's been unable to get the state's permission to do cataract surgery in his fully equipped Cedar Rapids office. Hundreds of thousands of dollars of medical equipment sits unused because nearby hospitals objected to his clinic.

The kicker is that Birchansky worked for six years in the exact same facility and the state had no problem with that. Before setting off on his own in 2004, Birchansky operated on patients as part of an agreement with a local hospital. Under a weird loophole in Iowa's CON laws, existing CON-holders are allowed to expand and open new facilities without seeking new permission from the government.

The existence of that loophole—which blatantly favors existing medical providers over new competitors, without any benefits for patients when it comes to the safety or availability of medical care—is at the center of Birchansky's lawsuit. The plaintiffs are represented by the Institute for Justice, a libertarian law firm (where, full disclosure, my significant other is employed).

"Through its loophole for existing health care facilities, Iowa's certificate of need scheme unconstitutionally favors existing businesses at the expense of our clients and other medical providers while also limiting the rights of Iowans to access safe, convenient, and cost-effective medical care," says Darpana Sheth, the attorney who will argue the plaintiffs' case.

While Iowa's laws are particularly onerous, 35 states have CON statutes of some sort on the books. Though primarily focused on health care, some state-level CON laws require permission to start moving companies or taxi businesses.

The consequences are always the same: These laws benefit special interests and limit competition. Patients end up losing. In a 2016 paper published by the Mercatus Center at George Mason University, Thomas Stratmann and Davild Wille show that hospitals in states with CON laws have higher mortality rates than hospitals in non-CON states. The average 30-day mortality rate for patients with pneumonia, heart failure, and heart attacks in states with CON laws is between 2.5 percent and 5 percent higher even after demographic factors are taken out of the equation.

Sometimes, those costs are acute. A Reason investigation last year showed how Carilion Clinic, a major hospital in Roanoke, Virginia, used the state's CON licensing process to stop a nearby hospital from building a neo-natal intensive care unit. Even after a premature infant died at the second hospital, the Virginia Department of Health (at the urging of Carilion's executives) refused to grant permission.

In Iowa, two local hospitals have worked together to block Birchansky's applications—four of them—to open his own surgery center. In a statement to the Cedar Rapids Gazette, Birchansky said it was "ridiculous" that the state would prevent him from seeing patients in a surgery center "that is already built, already equipped and all ready to go."

The hospitals have also blocked reforms to the state's CON system. As Reason has previously reported, Iowa hospitals successfully killed a proposal backed by Gov. Terry Branstad that would have exempted several medical services—including surgical centers and medical imaging clinics—from the CON process.

Perhaps Friday's court case will accomplish what Iowa's governor and legislature have failed to do. Maybe, after 14 years of trying, Birchansky is a little bit closer to being able to use his surgical skills to improve a patient's life.

A Dallas man was killed in his own home last night by a police officer who mistakenly entered his apartment thinking it was her own.

The officer, who has not been named, had just returned to her apartment complex after working a full shift, according to statement from Dallas Police. She told officers who responded to the shooting "that she entered the victim's apartment believing that it was her own," the statement says.

It's not clear how the situation escalated, but at some point the officer fired her weapon and hit the man. The victim, identified as 26-year-old Botham Shem Jean, was taken to Baylor University Medical Center and later pronounced dead. The officer was not injured.

Dallas Police are conducting a joint investigation into the shooting with the Dallas District Attorney's Office. According to the Associated Press, Dallas police are "seeking a warrant for manslaughter" in the killing.

The officer has been placed on administrative leave, police say. Her short-term fate is relatively common, as there are many examples of officers getting paid not to work following their involvement in controversial shootings.

According to The Washington Post, nearly 700 people have been fatally shot by police in 2018. Bowling Green State University professor Phil Stinson said last month that just 90 cops involved in fatal shootings have faced criminal charges since 2005.

This post has been updated.

Sen. Cory Booker (D-N.J.) followed through today on his vow to risk expulsion from the Senate by releasing confidential emails from Supreme Court nominee Brett Kavanaugh.

"I understand the penalty comes with potential ousting from the Senate," Booker stated. "I openly invite and accept the consequences of my team releasing that email right now."

The emails in question, dating back to Kavanaugh's time as a lawyer in the George W. Bush administration, had been labeled "committee confidential," meaning only senators on the Senate Judiciary Committee had access to them. But Booker released the messages anyway, arguing they're not "national security-related."

Booker made public twelve pages of emails, including a thread with the subject line "Racial Profiling." In one of the emails, dated January 17, 2002, Kavanaugh wrote that while he "generally favor[s] effective security measures that are race-neutral," it's still necessary to "grapple…with the interim question of what to do before a truly effective and comprehensive race-neutral system is developed and implemented."

Booker's acknowledgement that he's "knowingly violating" Senate rules is the latest development in Kavanaugh's contentious confirmation hearing before the Judiciary Committee. Booker questioned Kavanaugh over the emails yesterday, prompting a protest from Sen. Mike Lee (R–Utah), who pointed out that Booker was grilling Kavanaugh over documents he "can't see."

According Sen. Chuck Grassley (R–Iowa), there was a clear process in place for senators to request that certain documents be cleared for public release. Booker disagreed, referring to "this process as a bit of a sham." The New Jersey Democrat indicated that by releasing the documents, he's engaging in "civil disobedience."

Republicans condemned Booker, accusing him of grandstanding. Senate Majority Whip John Cornyn (R–Texas) even read the Senate rules to his colleague during the hearing. But Booker said it didn't matter. "Bring it. Bring it. Apply the rule and bring the charges. Bring it," he replied to Cornyn.

Booker got some backup in his act of "civil disobedience" from many of his Democratic colleagues. Senate Minority Leader Chuck Schumer (D–N.Y.) and Minority Whip Dick Durbin (D–Ill.) as well as Sens. Sheldon Whitehouse (D–R.I.), Richard Blumenthal (D–Conn.), and others expressed their support for Booker.

While Booker has been praised by liberals for releasing the emails, one can't ignore his ulterior motives. Though he hasn't said yet if he'll run for president in 2020, he's expected to be one of the top democratic contenders if he does. Making a scene at a high-profile confirmation hearing can only boost his profile and improve his chances of one day winning the Democratic nomination.