Online Psychotherapy Practice, a Case of Wine and the US Supreme Court
Thanks to a case about wine shipments now before the US Supreme Court, law concerning the regulation of interstate commerce could change significantly, with potentially broad consequences for e-commerce, online psychotherapy and online mental health services in general.
US Mental Health Laws…and a Case of Wine
It might be argued that current US laws regulating the provision of mental health services across state borders rest precariously atop 1930s-era principles embodied in the US Constitution when the prohibition of alcohol was repealed. It was the repeal of prohibition in 1933 that softened the way the original ‘commerce clause’ of the Constitution was interpreted, which had originally reserved for the Federal government all jurisdiction over interstate commerce. The repeal of prohibition granted to individual states limited rights to regulate trade (in alcohol) across state borders.
A case now before the Supreme Court would challenge states’ regulation of commerce passing over their borders, and I believe the resulting judgement could open the way to clarification (and eventual elimination) of state-level regulation of a host of other types of interstate commerce, particularly e-commerce, in apparent violation of the US Constitution. The provision of online mental health services could be one of them.
Legal Background of the Case
The commerce clause of the US Constitution clearly reserves for Congress alone the jurisdiction for regulating commerce passing between US states. Yet, the 21st amendment to the constitution, which repealed the earlier prohibition on alcohol, gave to states the right to regulate what their residents would be allowed to drink, and how much they would have to pay for alcohol. But wine consumers in the state of Michigan recently sued the state for the right to buy wine over the internet and have it shipped directly to them from out of state — arguing that the commerce clause protects free trade by prohibiting discrimination between businesses within a given state and outside that state. They won: the 6th Circuit Federal Appeals Court found Michigan’s liquor laws unconstitutional specifically because they violate the commerce clause.
Michigan fought back, arguing that the 21st amendment takes precedence over the commerce clause, and the case, which has now been consolidated with a similar case brought in New York, is before the Supreme Court and is being heard this week. Some 30 state attorneys general have sided with Michigan and New York, while five others, including (ironically enough, as I’ll suggest below!) from California — responsible for around 90% of all US wine production — have taken the side of free trade.
Background on State Mental Health Licensing and Interstate Commerce
Q: How could a citizen of Iceland (or any other country), who has never set foot in the state of California, become liable for prosecution by a California court for violating California state law?
A: By providing online mental health services to a resident of California.
As it stands currently, each individual US state sets its own requirements for the licensing of mental health professionals, often with a plethora of different licensing boards overseeing the licensure of different types of mental health professionals (psychologists, counsellors, psychoanalysts, etc.). But recently, some states — and most notoriously California — have begun making extraterritorial claims of jurisdiction for their mental health licensing laws, making it illegal for any practitioner to provide mental health services to any resident of California without being licensed by the state of California — regardless of where that practitioner is physically located. In other words, an Icelandic psychologist working with a Californian by telephone or over the internet has violated California law (unless licensed in California) and could in theory be subject to arrest and trial in California — or even extradition!
The extraordinary absurdity of extraterritorial claims of jurisdiction by individual states not just across state borders, but even across national ones (it’s not even a country, for goodness’ sake!), has yet to be tested in the courts. But if the Supreme Court strikes down state laws on the regulation of interstate commerce in alcohol, and in so doing returns to the original principles of free trade embodied by the framers of the Constitution, all that could change. The way could be opened for constitutional scrutiny of a whole range of state laws regulating interstate commerce, particularly internet-mediated commerce.
In my view, the rationalization of the current archipelago of regulation and licensure would be almost entirely positive for the consumer of online mental health services. But some might argue that state-level licensing serves an important role in protecting consumer interests…
The Underlying Concern: Consumer Protection or Money, Power, and Prestige?
State mental health licensing boards regularly play the ‘consumer protection’ card, arguing that state-level regulation is required to protect consumers against ineffective or harmful practitioners. But upon closer inspection, I believe appeals to effectiveness to justify the activity of licensing boards are so outrageous that they border on unethical. Why? Over four decades of scientific research on the effectiveness of psychotherapy have turned up essentially zero evidence that the kinds of factors typically of concern to licensing boards — academic qualifications, years of experience, etc. — have anything whatsoever to do with clinical effectiveness. (For a textbook treatment of this topic, see our review of Hubble, Duncan and Miller on what works in psychotherapy.)
Knowingly promoting to consumers a licensing regimen which appears to have nothing to do with the effectiveness of the service a consumer might receive thus requires either a quite astounding degree of scientific naivete or a pretty strong incentive to set aside legitimate concerns for consumer protection in favour of pursuing other ‘benefits’, such as enhancing the prestige and power of the profession. (Of course, it could well involve both: scientific naivete and a strong desire for something else, such as prestige and power.) If licensing boards were really concerned with consumer protection or clinical effectiveness, I believe they would stop promoting what I consider to be anti-scientific views to the general public. Instead, they would focus on tasks like conducting background checks or evaluating actual effectiveness or even (gasp!) helping to educate the public with real science, ultimately improving consumers’ capacity to make their own well-informed choices. Of course, that would not go down well with a large proportion of their colleagues, who earn their living in part by promoting themselves to the public as ‘fully qualified and state-licensed experts’.
Returning the wine case, just as in the area of psychotherapy licensing, the underlying motivation for the states’ position on regulation appears to have far less to do with consumer protection than it has to do with money and power. Michigan’s liquor control commissioner, Nida Samona, openly acknowledges that the state is concerned about losing liquor tax revenues if its powers to regulate commerce in alcohol are reduced. The in-state wine wholesalers, who enjoy a state-sanctioned monopoly on supplying alcohol, likewise have a clear interest in the continued barring of interstate trade. As Kenneth Starr (of Bill Clinton fame) has argued, as part of the legal team fighting for free trade, “It’s only the wholesalers, who have a very profitable oligarchy” in their cozy arrangements with state regulators, who actually want the restrictions kept in place.
A Related Attempt to Bring California Into the 21st Century
Four years ago, a related test case challenged the state of California’s mental health licensing laws on constitutional grounds, arguing that California’s barring of particular psychoanalysts from practice in California constituted a violation of their rights, especially to freedom of speech, guaranteed by the first and fourteenth amendments to the US Constitution. (Just as a point of interest, the psychoanalysts who brought the case were well educated and experienced in the eyes of their professional organization, the National Association for the Advancement of Psychoanalysis. One, for example, was a physician licensed to practice in several other US states and even other countries. Yet under California law, all were viewed as just as unqualified to practice as a 15-year old high school dropout would be.)
That case did not prevail in either the original trial court or the 9th Circuit Court of Appeals, and the Supreme Court declined to hear the case. The Court of Appeals did, however, rule that psychotherapy broadly understood is entitled to some first amendment protections.
The Future of Interstate Regulation of Online Mental Health Services
The legal community as well as many involved in online mental health have long been awaiting clarification on whether this original setback to having the California law struck down constituted the last word on the matter. It may yet turn out that the crucial ingredient in opening such laws to detailed constitutional scrutiny is not freedom of speech at all. It may yet turn out that the crucial ingredient is a case of wine and the legal precedent that may be set regarding the freedom of individual consumers to buy products (or services, in the case of online mental health) from any supplier they choose, without the interference of powerful vested interests at the state level.
