CON Laws Limit Access to Safe Maternal Care

Katie and Nick Chubb wanted to open a birth center in Augusta, Georgia after their positive experience at the Atlanta Birth Center during Katie’s pregnancy. They were frustrated by the lack of similar services in their own city, especially given that Georgia has the fifth worst maternal mortality rate in the nation. They envisioned a facility that would offer personalized, midwife-led care and community-based support for families including prenatal and postnatal services, educational classes, and even a “baby box” for safe infant surrender under the state’s Safe Haven Law.

They had widespread local enthusiasm and the Georgia Department of Community Health even determined that it was needed, financially feasible and cost-effective. However, the Chubbs’ efforts were blocked by the state’s Certificate of Need (CON) law. This regulation requires new healthcare facilities to obtain approval from existing hospitals for emergency transfer agreements. Despite the fact that federal law already mandates hospitals to accept all patients in an emergency, Augusta’s three hospitals refused to sign such agreements, effectively banning the birth center from opening. 

With support from the Pacific Legal Foundation, Katie challenged the CON law in court. The lawsuit argued that the regulation, by allowing entrenched hospital systems to veto potential competitors and limit maternal care options, is unconstitutional. Thankfully, the litigation has closed due to the state modifying the law. In 2024, Georgia passed HB 1339, which made significant reforms to their CON law which, most notably, created an exemption for birth centers. The Chubbs are finally able to move forward with opening their birth center to support the women of Augusta, Georgia who desperately need more options for safe maternal care. 

This story is just one of many that illustrate the need to repeal CON laws across the country. 

States began implementing CON laws in 1964, and the federal government mandated them for all states in 1974. The intent of these laws, which require approval to open or expand health facilities, was to control healthcare costs and improve quality and access to care. However, the federal mandate was repealed in 1986 due to growing evidence that they were not having its intended impact. Today, 35 states and Washington, DC, still have CON laws. Decades of research comparing outcomes in states with and without CON laws have continued to find that the laws are ineffective and even do the opposite of what they were meant to. 

CON laws create a very burdensome process for healthcare facilities to expand or open which limit competition and supply. For example, a provider submitting a CON law application in Washington state had to pay $84,236 on average in administrative costs and an additional $40,700 in application fees. This disincentivizes providers from offering care and research suggest that states with CON laws have fewer hospitals and higher prices due to a more limited supply. One study found that health care spending per capita is 3% to 4% higher in states with CON laws, and another suggested that CON laws can increase spending per capita by 10.5%. They clearly are not containing the cost of health care like they were meant to. 

CON laws have also failed at expanding access to and improving the quality of health care. It turns out that creating barriers to opening more facilities limits how much care is available. An analysis done in Vermont found that repealing CON laws would increase the state’s number of MRI scans by 36.4%, CT scans by 70%, and result in six more hospitals. This limited access impacts the quality of care as patients have fewer opportunities to catch possible issues that would need to be addressed. Compared to their non-CON counterparts, CON law states have been found to provide 4% fewer MRI scans, 3.52% fewer CT scans, and 8.13% fewer PET scans. 

Birth centers are just one example that clearly illustrates how CON laws are preventing a great option for women. Birth centers have better outcomes, such as lower rates of preterm births and higher rates of breastfeeding, and they are much more affordable, averaging around $8,000 compared to almost $19,000 for a hospital birth. Considering that there was a net loss of 399 obstetric wards nationwide between 2010 and 2022, and there is a projected shortage of over 5,000 OB/GYNs by 2030, women deserve to have the choice of receiving safe care from people like Katie who want to offer it.

CON laws limit facilities across many medical fields, such as nursing homes, surgical centers, psychiatric hospitals, cancer treatment centers, and more—all of which would benefit patients by removing unnecessary barriers. We should be moving to repeal these laws in all states so that the free market can be unleashed, allowing providers to offer the care their community needs, and patients to have multiple options to access that care.