Imagine having a rare medical disorder or being a physician with a highly specialized practice devoted to the treatment of patients with unique, sometimes debilitating or life-threatening conditions. Now, imagine that you’re a patient who can’t communicate with your physician, or imagine that you’re a physician who can’t communicate with patients who have sought your expertise—all because of limitations imposed by state law that block access to telehealth services.
This is the reality for a California woman with a rare hematologic condition whose specialist physician is in Oregon—a patient who was forced to drive 14 hours roundtrip to Oregon so that she could have a follow-up virtual visit with her physician in a Portland hotel room. It’s also the reality for a New York-based radiation oncologist who specializes in the treatment of genitourinary and head and neck cancers and has patients across the country.
Our friends at Pacific Legal Foundation (PLF) filed a federal lawsuit challenging the state of California’s restrictions on telehealth that would otherwise allow patients to access medical care from the comfort of their own home using a computer, smartphone, or landline phone. The Goldwater Institute filed an amicus brief in support of PLF urging the court not to permit California’s medical licensing statute, impose excessive burdens on patients seeking telehealth services based on its violation of the Dormant Commerce Clause of the United States Constitution.
The very purpose of the Commerce Clause was to create an area of free trade among the states. The Dormant Commerce Clause exists to protect what the Supreme Court has often called “the national free trade area.” It accomplishes this by precluding states from establishing trade barriers—including barriers a state may attempt to disguise as being rooted in its police powers to protect the health and safety of its citizens.
In determining whether a state law violates the Dormant Commerce Clause, courts apply a test from a 1970 Supreme Court decision, Pike v. Bruce Church, Inc. The ruling held that state laws that further a legitimate public interest will be upheld unless the burden the law imposes on commerce is clearly excessive in relation to its purported benefits. Under that test, Goldwater believes that California’s restriction on telehealth services must fail.
In Goldwater’s brief, we point out that while states have an indisputable duty to protect the health and safety of their citizens, California and most other states impose a national benchmark for the standard of medical care provided by specialized physicians. Since the type of care at issue in this case is highly specialized in nature, and since the physicians seeking to provide such care are licensed in other states, the burden imposed by California in requiring that physicians providing telehealth services to patients living in California also be licensed in that state is excessive.
In other words, the burden imposed by California’s medical licensure statute on telehealth services outweighs the benefit because the state’s legitimate interest in the health and safety of its citizens is satisfied.
Consider Florida and Idaho. A 2023 study by the Cicero Institute noted that during the first year of the COVID pandemic, both states removed barriers imposed on telehealth services by out-of-state providers, allowing access to telehealth with minimal restriction. Neither state requires an out-of-state physician to hold a medical license to provide telehealth services. In the years since that requirement was removed, no disciplinary actions were taken by either state related to the telehealth services provided to their citizens by physicians in other states.
For a state to impose unnecessary burdens on its own citizens for the receipt of necessary medical care by way of its own regulations is duplicitous and irrational. Further, the burden imposed by California for the provision of telehealth services is not economically efficient and stands in direct opposition to the constitutional benchmark establishing the national free trade area—the very purpose of the Constitution’s Commerce Clause.
Our brief is just Goldwater’s latest effort to make telehealth services more accessible to patients. Whether in state legislatures or in the courts, Goldwater continues to strive toward the elimination of barriers to telehealth, increasing unfettered access to telehealth services.
Read our brief here.
Patrick V. Bailey, MD, MLS, JD, FACS is the Director for Healthcare Policy at the Goldwater Institute.
