NJ’s Unjust ‘Social Equity’ Legal Weed Regulations Not Unjust Enough for Some

My 8/17/22 post covered New Jersey’s regulations of the state’s emerging legal cannabis industry, which is based on reactionary, un-American “social equity” premises. The law favors individuals identified under so-called “disadvantaged” groups like racial minorities, those once incarcerated for marijuana usage, and women.  The industry is overseen by the Cannabis Regulatory Commission (CRC), which even has its own Diversity Director. 

Apparently, the bigotted structure of the law is not enough for some. On 8/15/22, the New Jersey Star-Ledger editorialized that N.J. promised help for small weed licensees. So start helping already. 

The first step toward getting a license to operate a cannabis business is approval by the CRC. But after that, the applicant must get a license from the municipality it wants to operate in, which can cost many thousands of dollars, reaching as high as $50,000 just to open. That’s bad enough. But apparently the unfair favoritism some receive from the CRC based on skin color or gender is still not enough.

Complains Linda Solana, “Charging me the same high amount as everybody defeats the purpose. They just don’t get what social equity really means.” 

But I do. This is how open bigotry has become. Unequal treatment before the law is now accepted in NJ. Yes, that’s what so-called “social equity” really means; not fair and impartial, the actual meaning of “equity”, but just the opposite; bigotry, cronyism, legal favoritism, racism, sexism. 

The fees are outrageous. No one should need permission from the state, the municipality, or any other governmental entity to start a business or earn a living. But compounding that injustice with “social equity” injustice just compounds the immorality of the regulatory assault on NJ’s weed entrepreneurs. What to do? Fire the CRC’s Diversity Director, outlaw the licensure requirement, outlaw the municipal shakedown fees, and return to America's fundamental Constitutional mandate that forbids any state to “deny to any person within its jurisdiction the equal protection of the laws.” 

Related Reading:

NJ’s Racist, Sexist, Un-American ‘Social Equity’ Cannabis Law

The Permission Society: How the Ruling Class Turns Our Freedoms into Privileges and What

We Can Do About It by Timothy Sandefur

The Growing Horror of Occupational Licensure

Licensure Epidemic

It’s Time to End Occupational Licensure for The Objective Standard

In Answer to a Reader about Licensure

NJ’s Racist, Sexist, Un-American ‘Social Equity’ Cannabis Law

From a New Jersey Star-Ledger report by Suzette Parmley, Minorities and women seeking to own N.J. legal weed stores `swimming uphill’ to land licenses:

The New Jersey cannabis law* was meant to give minority applicants from disadvantaged backgrounds . . . not just an even playing field to get into the cannabis industry, but a leg up.

Some say the statute that Gov. Phil Murphy signed a year and half ago touting “social equity” to create a diverse and inclusive cannabis industry and help reverse the damage of the nation’s failed War on Drugs isn’t living up to its promises.

[My emphasis]

But how do you “reverse the damage” of history by creating new victims of injustice out of innocent people—the people who are the “wrong” color or are not from the “right” background? 

New Jersey’s cannabis law has a “social equity” carveout option for members of historically “disadvantaged” groups, including minorities and women. This means that a person is to be judged by skin color, ethnicity, or gender. Where does that leave actual individuals? The 14th Amendment? Without any recognition. The law evades the fact that the smallest and only morally relevant minority on Earth is the individual. 

The Cannabis Regulatory Commission [CRC], the 16-month old state agency regulating the industry and overseeing licensing, lists “equity and safety” as its twin goals. On its website, the CRC says: “Social equity businesses, diversely owned businesses, and impact-zone businesses** will be prioritized in the licensure process so that their applications are reviewed before other applicants – regardless of when they apply.”

Of 102 conditional licenses awarded by the CRC in May and June, 37 were self-identified majority black-owned; 13 were self-identified as majority Hispanic or Latino owned; and roughly a third have owners who have past marijuana convictions. 

[My emphasis]

So an applicant who is waiting for his/her approval is continuously pushed to the back of the line whenever the latest “historically disadvantaged” group member files an application. Is this equitable?

The article highlights economic difficulties of aspiring small business applicants who face large competitors and municipal licensure and zoning restrictions**. Parmley profiles Colia Best, a “minority” applicant approved by CRC’s bigoted process:

“We can’t compete with all these big MSOs [multi-state operators],” said Best, 48, who claims he spends hours on the phone daily trying to line up investors, calling townships, and researching online for real estate. “It’s a waiting game. It’s like trickle down economics — we’re waiting to see what’s left for us.” 

Best has some nerve whining about “trickle down economics.” The CRC process prioritizes people like him based on group identity, leaving others “waiting to see what’s left for us.” It’s a “trickle up” process, privileging state-favored people like Colia Best.

This is what the innocent-sounding “social equity” ploy looks like in practice—unequal treatment before the law. That is the opposite of equity. To treat someone equitably means fair and impartial. There is nothing equitable about NJ’s cannabis law. A truly equitable law creates precisely what the NJ cannabis law explicitly does not—a legal even playing field. Instead, we get a legal leg up for a privileged few. 

What we’re witnessing in NJ and across the nation is neo-tribalism. Tribalism is an ancient evil that The Enlightenment, and America, left behind in the dustbin of history. The Enlightenment recognized, philosophically, the moral primacy of the individual. Individualism is the foundational principle that gave rise to institutions such as universal inalienable individual rights, rule of objective law, capitalism, and limited rights-protecting government. Yet the ghost of tribalism lives on in NJ law. NJ’s cannabis law is collectivist, racist, sexist, and thoroughly un-American. 

* [The law deals with state-issued licensure. It still leaves the licensee applicant needing to deal with local municipal licensure requirements.]

** [Government occupational licensure and zoning laws are another problem. They should be repealed or greatly scaled back. But that is a different issue.]

Related Reading:

The Racism of the ‘Anti-Racists’

Collectivist Left on 'Pay Equity for Women'

On New Jersey’s Proposed Bill to Study Racial Reparations

NJ Turns its Back on the 14th Amendment – and History

Woke Redistricting Madness in NJ

The Racism of the ‘Anti-Racists’: NJ Governor Murphy’s Strange and Discriminatory ‘Baby Bonds’ Scheme

The Diversity Delusion by Heather McDonald

Don’t Allow the Left to Own ‘Diversity’

Individualism vs. Collectivism: Our Future, Our Choice—Craig Biddle

Related Viewing:

VIDEO: Individualism vs Collectivism - Dr. Yaron Brook

The Tyranny of Occupational Licensure is exposed by the COVID-19 Pandemic

In Historic N.J. tavern could lose liquor license for serving patrons inside during coronavirus shutdown, Katie Kausch (NJ Advance Media for NJ.com) reported:

It could be last call for good for the historic Mount Royal Inn, after the Attorney General’s office filed a petition to have its liquor license revoked.

The Inn violated Gov. Phil Murphy’s executive order twice, allowing patrons to eat and drink inside the restaurant despite a ban in that type of service, the petition alleges.

The Mount Royal Inn, in East Greenwich, Gloucester County, is an historic site. The establishment dates to 1762, and was briefly used as an Army headquarters following the Civil War.

A notice of charges seeking revocation of the liquor license also alleges that the inn failed to have a license or list of employees on premise when inspectors visited on April 7.

The presumptive penalty for all four alleged violations is a 32-day license suspension, but the state Division of Alcoholic Beverage Control called for a revocation, citing the total circumstances and aggravating factors of the pandemic.

Several other bars have been hit with fines of up to $750 and temporary license suspensions. Significantly, I have seen no indication that any of the customers who voluntarily visited the taverns were hit with charges or penalties. Aren’t they just as guilty of violating the Governor Phil Murphy’s shutdown order? Why do they get off scot free? Doesn’t the 14th Amendment’s guarantee of equal protection of the law mean anything anymore? Business owners are the most persecuted minority in America today.

Here are my Facebook post comments, slightly edited and expanded:

It’s bad enough that bars are fined for violating a politician’s order, despite lack of any evidence that the owner of the bar violated anyone’s rights through force or fraud. Revoking the liquor license of a tavern is tantamount to forcing a private enterprise out of business. To permanently take away a person’s right to earn a living for serving willing customers is a police state tactic that runs contrary to Americanism. But these strong-arm tactics by the NJ Attorney General's office  against the Mount Royal Inn and others exposes a deeper and wider injustice--occupational licensing as such. The right to earn a living is the most fundamental element of the principle that lies at the very heart of this unique nation, the “inalienable rights to life, liberty, and the pursuit of happiness”. “Inalienable “ means cannot be surrendered, taken, or transferred. Yet TAKEN is exactly what government-imposed occupational licensing does. Life is not possible without work. To require permission from the state to earn a living is tantamount to saying that you need permission from the state to live.

A right cannot be taken. A permission can be revoked. As a character in the novel Atlas Shrugged warned, one of the signs of approaching societal doom is “when you see that in order to produce, you need to obtain permission from men who produce nothing.” The danger of permission to earn a living is being broadcast loud and clear by the New Jersey Attorney General’s office. This is not due process of law. This is not the rule of law. This is the tyranny of arbitrary rule of men, the very evil that the Founding Fathers designed our government to prevent.

Occupational licensing is running amuck in this country. It’s time to begin rolling it back. A good place to start is to demand an end to liquor licensing. This is not a “just power” and government officials should not have. No one should have to obtain permission from government bureaucrats to sell a legal product to willing customers. 

New Jersey is not the only state to use licensure as an enforcement cudgel against what amounts to political dissidents. As Reason correspondent Robby Soave reports, Pennsylvania and Colorado have gone down that road as well. Occupational licensure has been justified as a means of ensuring that practicioners are properly trained and as an anti-fraud device. To use it as an enforcement mechanism against dissidents is straight-up tyranny.

Related Reading:

The Permission Society: How the Ruling Class Turns Our Freedoms into Privileges and What We Can Do About It by Timothy Sandefur

The Growing Horror of Occupational Licensure

Licensure Epidemic

It’s Time to End Occupational Licensure

In Answer to a Reader about Licensure

Institute for Justice Continues Fight against Occupational Licensure

Pacific Legal Foundation Scores Moving Victory by Ari Armstrong for The Objective Standard

The Right to Earn a Living: Economic Freedom and the Law by Timothy Sandefur

California's War on 'Economic Crimes' Sounds Like Something From Soviet Russia by Steven Greenhut for Reason.com: A state senator wants to crack down on "economic crimes" in the state's underground economy.

Many of these "economic crimes" simply involve working without the proper license. A study from the Institute for Justice finds that California has far more onerous licensing requirements than most other states.

Worried About Economic Inequality? Get Rid of Occupational Licensing by Eric Boehm for Reason.com

State licensing laws for low-income professions limit access to jobs and restrict mobility for those who have them. That's a recipe for economic inequality.

Democratic Governors Threaten Business Owners Who Reopen Ahead of Schedule by Robby Soave for Reason.com

What About Drivers Licensing?

In a fully free, laissez-faire capitalist society, should the government establish rules of the road, including licensing requirements for drivers? 

In the current mixed economy, the government owns the roads, so it certainly must regulate their use. But I believe the government also must have a role in a fully free society where all roads are privately owned.

The government has a role, in my view, since a car is an instrument of deadly force that can victimize innocents. It is the responsibility of legal scholars and the philosophy of law to determine the best way to codify government's role in law, as it relates to its rights-protecting function.

Traffic laws, licensing, and vehicle registration and identification tags handled by government have been around for a long time. The question to ask is: Do these rules in and of themselves interfere in an individual's rights to life, liberty, property, or pursuit of happiness? Do they interfere in the individual's right to pursue his goals and values? I don't see how they have or can, so long as they are objective and easily attainable, as they generally have been.

Of course, licensing and vehicle registration could probably be handled by private organizations. But I think it is appropriate for government to have some legal mechanism for requiring drivers using publicly accessible roadways to be properly trained. Any nut case should not he legally allowed to use public roads—government or private—just as the mentally ill or people with a violent criminal history should not be allowed to own guns.

The same goes for driving. People certainly should have proper training before going out on the road where they endanger others' lives whom they share the road with. If government doesn't issue licenses, private insurers and road owners have a strong self-interest in ensuring safe driving. They could require some kind of accreditation, or provide it themselves. But here's the thing: The government has an interest in providing order on the roads. This means keeping unqualified individuals or people with a really bad driving record off of the roads.

Operational licensure should not be confused with occupational licensure. They are distinctly different. My conclusion is that, in a fully free society—given the government as the instrument of rights protection, the forcible nature of the transportation devices, and the public nature of the roads—the government should have the authority to use its law-making powers to maintain order on the roads and protect responsible people from reckless drivers.

Cronyism Doesn't Promote Competition: It Limits Competition

Following several other states, New Jersey has banned Tesla from selling its electric cars direct to consumers, as you may have heard. This ban is based on a decades-old law that requires car manufacturers to enlist only state-licensed franchised dealerships to market their cars.

In defense of this ban, James B. Appleton, the President of the New Jersey Coalition of Automotive Retailers (NJCAR), defended the law in an op-ed State just wants Tesla playing by the rules. Appleton lists several reasons, from saying the law "protects consumers," to invoking the "public interest," to—can you believe it?—advising Tesla that its direct-sales model is too inefficient!

But this statement really took the cake:

The franchise system of independent new car dealerships promotes aggressive price competition, while the factory-store model advocated by Tesla creates a vertical monopoly and limits competition.

So the president of NJCAR, which is essentially a legally protected cartel, is trying to sell the idea that competition from Tesla limits competition.

But competition is based on voluntary contract to mutual advantage. Only when all producers and consumers are free to act on their own judgement, short of violating others' rights (such as through fraud or breach of contract), can there be true competition.

In the case of mandatory franchise laws, which force automobile manufacturers to contract with independent dealerships in order to sell cars, competition between manufacturers and dealerships is illegal, because consumers are stripped of the choice of buying directly from a manufacturer who may otherwise be willing to contract in such manner. Creating a legally protected cartel of dealerships is the exact opposite of competition.

I left these comments:

When you cut through the nonsensical rationalizations—such as that the government-enforced franchise system "protects consumers," as if forbidding consumers from buying Teslas in Tesla stores somehow "protects" them, or that without such a law "the factory-store model advocated by Tesla . . . limits competition," which only government has the power do and which is exactly what Appleton aims to do by shutting down Tesla sales—what you're left with is that the "public interest" turns out to be the NJCAR interest. In other words, the law Appleton defends is nothing more than naked cronyism.

Businesses and consumers have a right to contract voluntarily to mutual advantage—or not—whether between manufacturers and franchisees, franchisees and consumers, or manufacturers and consumers. The law should protect that liberty of contract equally and for all, not enforce the interests of some at the expense of the interests and rights of others.

Related Reading:

"Regulating" Business - the Good and the Bad

Gay Marriage Rights vs. Occupational Licensure

The gay marriage controversy in New Jersey highlights the conflict laws against private discrimination create, as I noted yesterday regarding gay marriage rights vs. religious rights. 

A correspondent replying to my comments regarding religious liberty highlights another conflict of rights created by rights-violating laws. An exchange with that correspondent once again indicates concretely just how the principle that rights violations beget more rights violations works. The correspondent wrote:

When a business owner (even a church) applies for a business license, the owner agrees to abide by all state and federal laws in the operation of that business -- and that includes laws against discrimination. Churches that open their halls to the public must obtain those licenses, and they must agree to the same laws as everyone else. They can only claim First Amendment exemptions from actually performing the ceremony, not renting out public space.

My reply:


Yes, "When a business owner (even a church) applies for a business license, the owner agrees to abide by all state and federal laws in the operation of that business -- and that includes laws against discrimination."

Which is why government-issued occupational licensure, including business licensure, should be abolished. When private citizens have to obtain permission from government officials in order to earn a living, the government invariably gains control over those private individuals. Government licensure is also a form of tyranny.

That said, everyone should abide by the laws, regardless of whether their occupation requires a license. But the laws must be just; i.e., laws must protect, rather than violate, individual rights. e.g.; laws against fraud protect rights. Laws against private sector "discrimination" violate rights.

Your last sentence also indicates that anti-discrimination laws violate property rights—the right to use and dispose of your property according to your own judgment. Rights violations beget rights violations. 


Licensure laws violate the right to work and produce, which leads to violations of contract rights, which leads to violations of rights of religion and conscience, which leads to violations of property rights. This is why a mixed economy, whereby some rights-violating government policies are deemed "necessary," is so unstable and leads stealthily and incrementally to totalitarianism. Where do you draw the line on government power, once you've abandoned the principles of liberty? 

Related Reading:

Gay Marriage: The Right to Voluntary Contract, Not Coercive "Contract"

It's Time to End Occupational Licensure

Star-Ledger's Smear of S&P is Uncalled For

In a recent editorial, S&P Back to their Old Tricks, the NJ Star-Ledger smeared the Standard & Poor's rating agency, saying:

Here we go again. Apparently, the nation’s largest credit-rating agency, Standard & Poor’s, is back to offering top ratings on bond deals to drum up business — having learned exactly nothing from our recent financial crisis.

The editors at acknowledged that . . .

To be fair, there are built-in conflicts of interest here: Wall Street firms pay big fees to agencies like S&P, creating an incentive for analysts to throw out seals of approval on financial products, just to keep customers happy. 

But they didn't acknowledge how those perverse incentives came about. I left the following comments:

The editors don't tell the whole story. 

Before the 1970s, bond buyers paid the appraisal fees, based on their own self-interest: They wanted accurate appraisals. Then, about 40 years ago, the government got involved. It created a rating agency oligopoly by licensing S&P, Fitch, and Moody's, then regulating them. One of the regulations imposed a change in the market-based payment model, forcing the agencies to charge sellers, rather than buyers, to pay the fees, setting up the conflict-of-interest the editors talk about. 

The licensing requirement also served to protect the rating agencies from competition, along with another regulation; an SEC mandate that requires insurance companies, money funds, banks and other institutions to hold only those debt securities rated by these government-approved agencies. 

The implied government "seal-of-approval" implied by licensure compounded the situation by fostering undue market confidence in the competence of the rating agency oligopoly. Consequently, securities buyers the world over got a false sense of security that the ratings were safe and accurate.

Everywhere one looks when investigating the financial crisis, the paw-prints of government interference into the market can be found as the fundamental cause. In the case of the rating agencies, as elsewhere, the government's interference created perverse market incentives that wouldn't exist in a free market. Perverse market incentives reward bad behavior and penalize good behavior. What result does anyone expect? (To be fair, the rating agencies were also mislead, like almost everyone else, by the "housing is safe and will always go up" mentality fostered by government housing policies and the Fed. But that is another issue.)

We need a new government model—non-interference. The government should get out of the rating agency business, and let competition in a free market determine the best business model.

Related Reading:

S&P Fraud Suit: A Case of the Pot Calling the Kettle Black

The Financial Crisis and the Free Market Cure—by John A. Allison

The Housing Boom and Bust—by Thomas Sowell

ARC's Response to the Financial Crisis—Ayn Rand Institute

End, Don't Amend, Liquor Licensing in New Jersey

AJ Sabath, the executive director of Retailers for Responsible Liquor Licensing, has called on his state's legislators to Free N.J.'s Market for Liquor. Sabath notes that "Lack of competition and egregious monopolies have plagued the liquor industry in New Jersey for far too long." He notes that state law allows only two liquor licenses per company, but cites a number of:

[L]iquor giants [that] have spent decades perfecting ways to play the system.... These modern-day robber barons and tycoons hold dozens of licenses by working the system to their advantage.

The state's liquor laws are outdated, he said, and called for revisions to "reflect the times in which we live."

Unfortunately, Sabath's proposed revisions do nothing to rectify the underlying problem:

Current law prevents a company from owning more than two retail liquor licenses. RRLL [Retailers for Responsible Liquor Licensing] is pushing legislation that would increase the number of retail liquor licenses to 10. 

This change would occur gradually over 10 years. Under this legislation, the total number of state licenses would remain the same.

Sabath concludes:

It’s time to “give a heck” about New Jersey consumers by providing good old-fashioned American competition. If Rockefeller and Carnegie were able to survive the dissolution of their monopolies, I think the liquor lobbies will do just fine in the American open market.

My posted comments:

The comparison to Rockefeller and Carnegie is not apt. They built their dominant market positions by successfully competing in the market through productive genius, not by means of legal restrictions on competitors.

The whole point of occupational licensure is to legally restrict competition and protect special interests. It is a formula for monopolies. Why merely change the formula? Why not eliminate liquor licensure altogether? As long as liquor licensing remains in effect, ways will be found to game the system and restrict competition. 

Licensing is also immoral. No one should have to get permission from the government to work in the occupation of one's choice, trade, and earn a living. Alcoholic beverages are a legal product, and any merchant should be legally free to sell them to willing customers.

Why Dieing is So Expensive

Death and taxes, goes the old saw, are the only certainties in life. We can now add occupational licensing.

My latest post at The Objective Standard blog highlights this growing problem. Please read Institute for Justice Continues Fight against Occupational Licensure.

Occupational licensure not only hinders economic activity, it is an indirect threat to all of our rights, as I noted here.

Related Reading:

Licensure Epidemic

Occupational Licensure Threatens Free Speech in NC

In my TOS post, It's Time to End Occupational Licensure, I cited examples of how government licensure powers not only violate every individual's right to earn a living, but potentially enables government to violate any of our inalienable rights. I wrote:

• A Florida legislator threatens a doctor with loss of his medical license for exercising his First Amendment rights.

• A proposed Massachusetts law would force health care providers to treat Medicare and Medicaid patients as a condition of their medical licenses.

• Beginning
 next year, New York lawyers will be required to perform fifty hours of free legal services as a condition of their law licenses.

Another example of this wide-ranging threat comes out of North Carolina, where the Institute for Justice has filed a lawsuit challenging the notion that occupational licensing laws trump free speech. Here is an excerpt from Caveman Blogger Fights for Free Speech and Internet Freedom:

   Can the government throw you in jail for offering advice on the Internet about what food people should buy at the grocery store?
   That is exactly the claim made by the North Carolina Board of Dietetics/Nutrition. In December 2011, diabetic blogger Steve Cooksey started a Dear Abby-style advice column on his popular blog (www.diabetes-warrior.net) to answer reader questions. One month later, the State Board informed Steve that he could not give readers advice on diet, whether for free or for compensation, because doing so constituted the unlicensed, and thus criminal, practice of dietetics. The State Board also told Steve that his private emails and telephone calls with readers and friends were illegal, as was his paid life-coaching service. The State Board went through Steve's writings with a red pen, indicating what he may and may not say without a government-issued license.

The Institute seeks "seeks to answer one of the most important unresolved questions in First Amendment law: When does the government's power to license occupations trump free speech?"

Of course, the fundamental question is: What right does the government have to demand that private individuals obtain a state license to earn a living? It's hard to see how "Caveman's" free speech rights can coexist with state licensure laws. Nonetheless, the Institute's fight to reign in government's licensure powers is most welcome.

For more, see:

Licensure Epidemic

The Coming Collision Between the Doctors and the State

The Growing Horror of Occupational Licensure

In Answer to a Reader about Licensure

Sometimes The Best Medical Care Is Provided By Those Who Aren't M.D.s, by Amesh Adalja, M.D.

In Answer to a Reader about Licensure

My recent TOS post, "It's time to End Occupational Licensure," a reader left the following comment:

Posted by Angie DetriotCollapse; We should end all government certification of trades and professionals as well.   If you want to fly a plan,  just buy one and take it up into the skies.  Who is the government to say you know what you'r doing.  You want to be a dentist?  Buy a chair and get her done!

I posted the following answer:

Operating licensure is outside the scope of this post. 

But as to that “dentist,” unscrupulous practitioners can (and do) operate on the fringes of any occupation. That’s why we have anti-fraud and criminal negligence laws and the like. Government should vigorously enforce these laws, rather than hamper honorable, productive people with licensure requirements.

Civil court redress is also available to anyone believed to have been harmed as a result of work performed by unqualified personnel. 

In a free market, there are strong legal and market incentives for tradesmen and professionals to voluntarily seek certifications in their occupational fields from trusted accreditation firms, as their own judgments dictate. All we need from government is for it to do its job of protecting individual rights.

The Growing Horror of Occupational Licensure

My latest post at the Objective Standard Blog deals with a subject that should concern all Americans. The opening sentence:

A virulent epidemic is violating American’s rights and sapping the U.S. economy: occupational licensure.

From It's Time to End Occupational Licensure.

Freedom and Individual Rights in Medicine (FIRM) featured my post, and cited a new study from the Institute for Justice concerning the same subject. The IJ study highlights the particular burden licensing requirements put on the young and the poor. It cites 102 lower-income occupations burdened by licensure which, in effect, kicks the bottom rungs of the proverbial economic "ladder of success" out from under many motivated would-be productive citizens.

The licensure issue brings to mind Ayn Rand's warning:

When you see that trading is done, not by consent, but by compulsion–when you see that in order to produce, you need to obtain permission from men who produce nothing–when you see that money is flowing to those who deal, not in goods, but in favors–when you see that men get richer by graft and by pull than by work, and your laws don’t protect you against them, but protect them against you–when you see corruption being rewarded and honesty becoming a self-sacrifice–you may know that your society is doomed. --Francisco d'Anconia, a character in Atlas Shrugged.

The Coming Collision Between the Doctors and the State

The ink of the President’s signature is hardly dry, and already the horrifying ramifications of ObamaCare are surfacing. Two recent episodes, one in Florida and one in Massachusetts, highlight the dangerous path that must logically follow when government decrees a “right” to healthcare, and begins to enforce it.

The Florida case involves a single doctor launching a lone dissent against ObamaCare. Dr. Jack Cassell has an independent practice in Mount Dora. In “A Prescription Against Tyranny”, Ralph R. Reiland describes this individual American’s method of protest:

“He's the Florida doctor who told his patients to go elsewhere for treatment if they voted for President Obama. The message posted on his office door: ‘If you voted for Obama ... seek urological care elsewhere. Changes to your health begin right now, not in four years.’

“It didn't take long for Cassell's congressman, Rep. Alan Grayson, a Democrat, to say that he smelled racism [because] ‘many of the Democrats who live in Mount Dora happen to be African-Americans [which implies that] he's saying that he's not going to treat a large number of African-Americans in this country.’

“Cassell told Fox News that the real purpose of his door posting was educational, not racist, and that he wasn't literally turning down patients” although, as Investor’s Business Daily quoted him as saying ‘If they read the sign and turn the other way, so be it.’ ”

“Meanwhile, Rep. Grayson,” continues Mr. Reiland, “ trying to dig up a victim in order to challenge Dr. Cassell's medical license and/or empty the doctor's bank account, reportedly is looking for an Obama voter who encountered Dr. Cassell's notice on the door and then took flight, thereby being deprived of medical care.” (Emphasis added.)

Under the doctrine of a “right to healthcare”, someone must be forced to provide it. Dr. Cassell is merely exercising his basic unalienable human right to contract freely and voluntarily with patients of his choice, in this case coupled with his right to dissent against what he considers governmental tyranny. He is not depriving, and in fact has no power to deprive, anyone of medical care, any more than someone choosing another doctor is depriving Dr. Cassell of patients. If he chooses not to treat someone, for whatever reason, that person is free to seek treatment elsewhere. But because anyone seeking treatment from him has a right to his services under this doctrine, the doctor’s refusal means that someone “thereby [is] being deprived of medical care.” Dr. Cassell’s actual, political rights are obliterated. Such is the nature of all alleged economic rights … the violation of actual political rights, and the imposition of involuntary servitude upon the provider.

The second case involves the continuing evolution/deterioration of the healthcare industry in the land of ObamaCare’s model, the RomneyCare universal healthcare scheme of Massachusetts. Among many problems, that state is apparently having some trouble attracting doctors voluntarily into the state plan’s network. So, the politicians have come up with a solution – force them into it. In a Voices for Reason post entitled Massachusetts law would turn doctors into serfs, Don Watkins quotes a proposed law:

“ 'Every health care provider licensed in the commonwealth which provides covered services to a person covered under ‘Affordable Health Plans’ must provide such service to any such person, as a condition of their licensure, and must accept payment at the lowest of the statutory reimbursement rate…' ”(Emphasis added.)

One doctor he quotes termed the law “unbelievable”.

“But it isn’t unbelievable–not if you view need as an entitlement [i.e., a right]” continues Mr. Watkins. “If a Medicare patient’s need of health care entitles him to it, then why should a doctor have the right to refuse service just because the doctor won’t make money? Wouldn’t that be selfish and greedy?

“There is nothing noble or benevolent about political thugs forcing doctors–the men and women without whom all of our health care needs would go unfulfilled–to sacrifice their time, their energy, and their wealth to anyone’s need.

“Remember: the morality of need means serfdom for doctors.”

Indeed it does, as these two instances prove. And as IBD observes in the Cassell case:

“Washington will eventually treat him and other doctors as vassals of the state.

“They will no longer be the owners of their minds and their labor, their years of study and the development of their skills. All those instead will be owned by their masters on the Potomac.”

Notice the common denominator tying the Massachusetts and Florida cases together – government licensure. As I pointed out in my post of 6/24/08, government licensure in America is reaching epidemic proportions and is “being led … by private citizens looking to protect their occupational turf through governmental coercion”, leading to the emergence of the modern-day version of Medieval guilds. This extracts a tremendous cost on the economy. Medical licensing, in particular, has had a very deleterious effect on healthcare. In an article entitled Medical Licensing Impedes Quality, Affordability of Care, Jillian Melchior writes:

"Medical licensing is ineffective and inefficient, and patients would be better served by relying on brand recognition when choosing their doctors, writes [Cato Institute fellow] Shirley Svorny in a new report for the Cato Institute.

“In health care, we haven’t used brand names because people have been trusting licensure,” Svorny told Health Care News, “but it’s a weak apparatus, and it’s not trustworthy. People put a lot of faith in this license, and it doesn’t tell you very much.

“In essence, you’re putting your life at risk,” Svorny continued. (Emphasis added.)

Government occupational licensure is destructive, immoral, and a violation of individual rights, to be sure. But, as the two cases cited above reveal, the worst evil is that it is a tool of coercion and control.

Doctors are being threatened with the choice of either submitting to a modern-day version of slavery, or loss of their careers and livelihoods. This, because many are exercising their basic human right to follow their own convictions, consciences, and professional and economic self-interest. This brazen, legalized thuggery is the logical end result of a society that accepts the principle that, to quote Francisco d'Anconia, “in order to produce, you need to obtain permission from men who produce nothing” (p. 413).

Is this the tip of the iceberg? We are at the beginning of a slow-motion medical catastrophe in this country the like of which the world has never seen. As the trend of socialized medicine spread around the world during the 20th century, there were various instances of doctor resistance. One of the most infamous cases was in 1964 Belgium, where Doctors staged a limited nationwide strike in defiance of the enslavement of their profession – a peaceful rebellion that was crushed when the government instituted a military-style draft…yes, a draft…of doctors into the civilian national health service. But overall, despite varying levels of resistance, doctors ultimately submitted, resulting in the gradual deterioration of heathcare in those nations that government-run medicine is infamous for.

But this is America, the last bastion of semi-freedom in healthcare. There are growing signs that the doctors here won’t take this lying down. Dr. Joseph M. Scherzer, M.D., reports that:

Just "two years after a survey found nearly half of Texas doctors weren't taking some new Medicare patients, new data shows 100 to 200 a year are now ending all involvement with the program."

And Daniel Palestrant reports about ObamaCare at Forbes.com:

“…the medical establishment is not celebrating. In fact, the mood in those exams rooms is downright morose.

“In tens of thousands of exam rooms all over the country physicians are struggling to make sense of the 2,000-plus pages of the reform bill. A recently released poll of more than 2,000 physicians, conducted by Athenahealth and Sermo, is alarming. The poll, part of a broader Physician Sentiment Index, indicates that 79% of physicians are less optimistic about medicine since the passage of health care reform. Fifty-three percent indicate they will consider opting out of insurance plans with passage of the bill. Worst of all, 66% indicate that they will consider opting out of all government-run programs. The same reform bill that will provide "care for all" may drive away more physician caregivers than attract previously uninsured patients. What a predicament that would be.”

What a predicament, indeed! Consider the Massachusetts and Florida medical licensure cases cited above as you digest that 66% figure. If that percentage is even close to becoming a reality, we are heading on a collision course between the government and the medical profession, which will have very broad and serious implications for American liberty. Will the statists in Washington resort to terroristic practices when its universal healthcare fantasy begins to disintegrate? Will they move to literally enslave the doctors? Or will they relent, and move toward medical freedom? The Florida and Massachusetts actions by our government officials, not to mention Belgium’s doctor draft, gives us a glimpse into a chilling future.

The doctors are the front line in this battle. A principled doctors’ rebellion of some sort against the coiling snake of government control of medicine is, in the end, our best hope of avoiding not just an American, but a world-wide, medical catastrophe. America’s island of relative freedom in a world of socialized medicine has been the safety valve for the stressed systems of other countries. Both directly and indirectly, the American market has been the catalyst for medical progress. It has absorbed many of the victims who couldn’t get the care they needed in their native countries. When America goes, so will go the rest.

How recalcitrant individual doctors respond to the ObamaCare assault will undoubtedly depend upon their personal circumstances. An older doctor who is financially set is obviously in a very different position from his younger colleague who still has a mountain of debt to pay off. But one thing that may unite a large segment of the medical profession is the kind of outraged sentiment expressed by Dr. Hendricks in Atlas Shrugged:

“I quit when medicine was placed under State control, some years ago,” said Dr. Hendricks. “…I observed that in all the discussions that preceded the enslavement of medicine, men discussed everything — except the desires of the doctors. Men considered only the ‘welfare’ of the patients, with no thought for those who were to provide it. That a doctor should have any right, desire or choice in the matter was regarded as irrelevant selfishness; his is not to choose, they said, only ‘to serve.’ That a man who’s willing to work under compulsion is too dangerous a brute to entrust with a job in the stockyards never occurred to those who proposed to help the sick by making life impossible for the healthy. I have often wondered at the smugness with which people assert their right to enslave me, to control my work, to force my will, to violate my conscience, to stifle my mind — yet what is it that they expect to depend on, when they lie on an operating table under my hands? Let them discover the kinds of doctors their system will now produce. Let them discover … that it is not safe to place their lives in the hands of a man whose life they have throttled. It is not safe, if he is the sort of man who resents it – and still less safe, if he is the sort who doesn’t.” (P. 744)

If the Florida and Massachusetts assaults on their rights become the preferred method of force behind the government’s drive to guarantee everyone healthcare, then the doctors have an unbeatable trump card. Medical licensure gives doctors a secret weapon of their own that can be thrown back in the politicians’ faces, if they discover it and choose to use it, much the way Hank Reardon challenged the judges at his trial:

“The penalty which this court has the power to impose on you is extremely severe.”

“Go ahead,” said Reardon.

“I beg your pardon?”

“Impose it.” (P. 478)

One of the lessons of Atlas Shrugged is that evil can only triumph with the sanction of the good. Otherwise, it is thoroughly impotent. The doctors’ have more than the choice of to quit or submit. The statist political establishment apparently believes it has a trump card – government licensure. Some such snake like Rep. Alan Grayson is counting on the doctor’s love and need for his profession in order to force his will, what Ayn Rand called “White Blackmail” – the practice of extracting involuntary concessions by using not some victim’s villainous secret but his virtues as the weapon against him. But what if some doctor such as Dr. Cassell were simply to call the government’s bluff? That is the power the doctors hold.

I know it’s easy for me to say. I’m not a doctor. I acknowledge that. It’s not my livelihood that’s at stake here.

On the other hand, the future of not just my healthcare but the healthcare of my children and grandchildren is at stake. So, let us imagine what might be if enough doctors are willing to take a Hank Reardon stand:

“Go ahead, take my license!”

Who, then, will be depriving whom of medical care?