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Optometrists Feel Threatened By Technology, So Guess What Do They Do

One of the many holes in the “social contract” theory of government is that the power of the state is so often harnessed by interest groups to protect themselves against competition. Nobody ever agreed to that, but it happens all the time, inflicting losses on the consuming public, Forbes writes.

A recent instance of this is the aggressive lobbying campaign being waged by the American Optometric Association (AOA) against innovations that now make it possible for Americans to get accurate eye exams and lens prescriptions over the Internet.

By using such innovations, millions of Americans who need vision correction could save substantial amounts of money. But savings for them means less revenue for optometrists and they are trying to stop that by asking politicians for salvation.

As far as the AOA is concerned, the villain is new technology that gives consumers less costly alternatives than the old-fashioned office visit. One of those alternatives is called Opternative. It gives consumers an eye exam that takes 25 minutes through a smartphone app. No need to drive, park, and wait. The eye analysis through the phone has been proven to be just as accurate as those done in professional offices.

Naturally, the AOA sees phone apps for eye prescriptions the same way the Luddite hand-weavers saw the development of power looms – they must be shut down.

Lawyer Bruce Fein excoriates the AOA for its efforts at preventing this competition. In his May 8 Washington Times article, he writes, “Their current well-financed efforts to strangle internet competition in contact lenses and eyeglasses are indistinguishable from standing athwart economic history yelling ‘Stop.’”

One state where, perhaps surprisingly, the lobbying has been successful is South Carolina. Last year, the state legislature passed a bill to ban Opternative and any similar technologies from offering their services to residents. The impact of the bill was to give South Carolina’s licensed optometrists a monopoly on eye exams. How nice for any business to have a captive customer base.

Then-governor Nikki Haley (now Ambassador to the United Nations) vetoed the bill (called the Eye Care Consumer Protection Act – interest groups seeking to stifle competition invariably say that they’re just protecting the consumer against making bad choices), saying in her veto message, “During my administration, South Carolina has expanded access to healthcare … to rural and underserved regions of our state using telemedicine. Unfortunately, a small group of eye care professionals is seeking to block new technologies that expand low-cost access to vision correction services.”

Good for her. But then the state legislature overrode her veto, a testament to the lobbying power of professional groups even in a state where supposed pro-market, laissez-faire Republicans hold power. So the Eye Care Consumer Protection law is in force, wiping out Opternative and any firms like it.

The AOA shouldn’t celebrate victory yet, however. A suit challenging the legality of the law has been brought by Opternative, with the able assistance of the Institute for Justice. (For readers who aren’t familiar with IJ, it is the premier organization fighting in favor of property rights and economic liberty in America. Check out its website and you’ll see that IJ’s commitment to principle has helped Americans of all categories and descriptions.) The suit to nullify the law, Opternative v. South Carolina Board of Medical Examiners has been filed in state court and is currently in the discovery phase.

Opternative’s case is based solely on South Carolina law. The state’s constitution protects “the right to pursue an honest living free from arbitrary, irrational, and protectionist legislation.” What this law does, the complaint forcefully argues, is purely arbitrary, irrational protectionism, which is not a legitimate basis for any law. (You can read the complaint here.)

As we read in this article about the case on the Institute for Justice website, “In one sense, this case is almost something out of science fiction. Opternative’s technology—indeed, the smartphones that make Opternative’s technology possible—would have been unimaginable just 15 years ago. In another sense, though, it is a tale as old as time: Entrenched business interests demand that legislators protect them from competition, and legislators oblige.”

Is the case likely to succeed?

Courts used to give the back of their hand to cases arguing in favor of economic liberty and the freedom to compete. In the 1955 decision in Williamson v. Lee Optical, the Court unanimously held in favor of an Oklahoma law quite similar to the South Carolina law against Opternative (the law prohibited anyone other than a licensed optometrist or ophthalmologist from fitting lenses into glasses frames). The Tenth Circuit, after a careful analysis of the law, had declared it unconstitutional, but the Supreme Court rebuked it. Justice Douglas opined that even though a law is evidently needless and wasteful, it was not the job of the courts to intervene.

More recently, however, the Court has taken a much more engaged stance (which is to say, not lazily deferential to legislative whims; for a full discussion read Clark Neily’s book Terms of Engagement) when faced with blatantly anti-competitive laws. Back in 2015, for example, the Court struck down North Carolina’s regulation that made it illegal for anyone but a licensed dentist to provide teeth whitening services, a case I wrote about here.

I think there is good reason to believe that the AOA will ultimately lose in its fight against technological progress. Those of us who wear glasses or just favor technological progress should hope so.

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