The United States District Court for the District of Columbia on Wednesday struck down a D.C. law that barred therapists licensed in other jurisdictions from conducting online teletherapy visits with clients in the District, according to the Institute for Justice (IJ): press release and decision.

The ruling came nearly six years after Virginia-based counselor Elizabeth Brokamp joined with the Institute for Justice to file a lawsuit arguing that the law violated the First Amendment. The case matters beyond one provider because it treats talk therapy as protected speech rather than merely as professional conduct subject to local licensing control.

“This decision is a victory for anyone who speaks for a living,” said IJ Deputy Director of Litigation Robert McNamara. “Elizabeth’s victory here confirms that the First Amendment protects useful speech, including counseling, and that licensing boards can’t censor speech simply because someone doesn’t have their permission to talk.”

Marginal Revolution noted the ruling and argued that similar barriers remain in medicine, including restrictions that prevent patients from hiring physicians licensed in other states. The post referred to an earlier argument, published last year, about cross-state telemedicine.

During the pandemic, many telemedicine restrictions were lifted, making it much easier for physicians to treat patients across state lines. That period has largely ended. Today, unless a doctor is separately licensed in the patient’s state, or unless the states have a formal agreement, remote care is often illegal.

For example, a patient living in Virginia who wants a second opinion from a Mayo Clinic physician in Florida may have to travel to Florida unless that Florida physician also holds a Virginia license. The practical effect is that state borders can determine whether a remote consultation is available even when both patient and physician are willing and the physician is licensed somewhere in the United States.

The common framing treats the issue as one of physician licensing, which often leads to proposals for interstate compacts or federalized medical licensure. Mutual recognition is one option: driver’s licenses, for instance, are issued by states but are valid in every state, and the post noted that no one complains that Florida’s licensing system endangers Virginians.

But Marginal Revolution argued that mutual recognition or federal licensing is not the only solution, nor the only way to understand the issue. In that view, the central problem is not who licenses doctors, but that patients are forbidden from choosing a licensed doctor in another state.

The proposed approach would keep state-level licensing while allowing patients to consult any physician licensed in any state. The post described that model as competitive federalism: no compacts, no federal agency, just patient choice.

Hat tip: Joel Selanikio, https://x.com/jselanikio/status/2080284807620124758?s=20.

Source: Marginal Revolution.