CINCINNATI (CN) — The Sixth Circuit partially revived an Ohio ambulance service’s challenge to Kentucky rules that prevent it from expanding into the state, finding that rules preventing them from transporting patients across state lines could feasibly violate the U.S. Constitution’s dormant Commerce Clause.
Legacy Medical Transport, which provides nonemergency ambulance services in several Ohio counties near the Kentucky border, filed suit against a number of Kentucky state officials in 2019 after discovering that licensing requirements would prevent it from expanding operations into the state.
Kentucky currently requires that any ambulance service acquire a government-issued Certificate of Need before transporting a patient within the state. The process for obtaining those certificates, Legacy Medical argued before the 6th Circuit in March, unfairly allowed established companies to push out potential new competitors. U.S. District Judge Gregory Van Tatenhove had found otherwise, ruling last September that Kentucky’s requirements were constitutional and granting summary judgment to the state officials.
The Sixth Circuit panel — comprised of Donald Trump appointees U.S. Circuit Judges John Bush and Eric Murphy, and George W. Bush appointee U.S. Circuit Judge Richard Griffin — largely agreed with Van Tatenhove, with one caveat. Kentucky had not shown, Murphy wrote for the majority in the ruling, that it had the authority to prevent Legacy from picking up patients in Kentucky and bringing them to doctors or hospitals in Ohio.
The panel's reversal largely hinged on the Supreme Court’s 1925 decision in Buck v Kuykendall and that case’s offspring. In Buck, the high court found that the state of Washington could not deny a prospective operator of an “auto stage line” — an antiquated term for what effectively was a bus line — between Portland and Seattle on the grounds that another operator already served that area sufficiently.
“While the district court sought that later cases had repudiated Buck, we find that claim debatable,” Murphy wrote. “Besides, the court has told us that we must follow a directly controlling case even if later decisions call it into doubt. Buck controls here.”
Kentucky’s certificate regime was not unconstitutionally discriminatory against out-of-state ambulance providers as applied to operations within the state of Kentucky, given the history of Commerce Clause caselaw regarding intrastate commerce, Murphy determined.
“Legacy may think that unfettered competition will produce the most efficient allocation of health-care resources for Kentuckians,” he wrote, “but it must take this debate to Kentucky’s legislature.”
Interstate transport, however, fell within Buck’s purview. “According to the Cabinet, the Kentucky law does not require a certificate of need for Legacy to transport Kentucky residents or nonresidents from Ohio to Kentucky,” Murphy noted. “The cabinet also reads the law to permit Legacy to take Ohioans ‘from a Kentucky health care facility’ ‘back to’ Ohio without obtaining a certificate of need … The law thus bars Legacy only from transporting Kentuckians to Ohio venues.
“We fail to see why the cabinet’s narrow reading of Kentucky’s law saves it under Buck’s categorical logic,” he continued. “The court did not say that a state could prohibit a ‘little’ interstate transportation on this forbidden ground. It said that the state could prohibit none at all ... The narrower nature of Kentucky’s ban does nothing to distinguish Buck.”
Murphy and the rest of the panel reversed Van Tatenhove’s grant of summary judgment on the interstate-transport issue, remanding the case to the District of Kentucky for further proceedings.
Legacy was represented at the hearing by Josh Polk of the Pacific Legal Foundation, a nonprofit legal organization whose website describes its mission as defending Americans' liberties from government overreach and abuse.
Polk was unavailable, but foundation Director of Equality and Opportunity Litigation Joshua Thompson celebrated the ruling as a "huge win" for Legacy and its owner, Phillip Truesdell. "This ruling gives him an opportunity to grow his business in the way that he wants to," Thompson said. "The ruling recognized that the constitution protects that right for him, to travel interstate to perform this function, this business."
Thompson said that the ruling represented an important step forward for the foundation's mission in the aftermath of the Supreme Court's October 2022 decision in a case brought by California pork producers to challenge that state's prohibition on the sale of certain pigs that are "confined in a cruel manner." That decision saw the court fracture on Commerce Clause questions regarding interstate commerce, leaving lower appellate courts to bushwhack through questions about when state laws are allowed to cause extraterritorial effects.
While any possible appeal would depend on whether Truesdell and the state of Kentucky are satisfied with the ruling, Thompson said, the foundation is "extremely interest in having the Supreme Court revisit" its 1873 Slaughterhouse cases, which are known for having effectively nullified the Fourteenth Amendment's Privileges or Immunities Clause. The Legacy case, he said, could be a good vehicle to do that.
"It's a good day for the American Dream, for economic liberties, and for Phillip and his family," Thompson said. "We're also happy with the developments on the dormant Commerce Clause."
The Kentucky Cabinet for Health and Family Services did not reply to a request for comment Friday evening.
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