Herring Intervenes to Protect Hospital Competition… in Pennsylvania

by James A. Bacon

It’s encouraging to see that Mark Herring has taken a forceful action against an “anticompetitive hospital merger” in his final days as Attorney General. Too bad the targets of his judicial intervention are in New Jersey, not Virginia.

Herring has joined a bipartisan coalition of 26 attorneys general filing an amicus brief in federal court in support of a lower court ruling that would stop a merger of Penn States Hershey Medical Center and Pinnacle Health. As a press release from Herring’s office explains, states have a strong interest in ensuring the affordability, accessibility, and quality of health care.

“The public interest is best served by protecting vibrant competition in local healthcare markets,” asserts the press release. “States have experienced a wave of consolidation in healthcare that has resulted in higher prices without any substantial improvements in quality for consumers.”
In a rarity, I find myself in total agreement with Herring, at least in the abstract. But, curiously, I cannot recall the AG ever intervening in Virginia’s medical marketplace to preserve competition. The press release does not refer to any cases in which he did so. Virginia’s giant healthcare systems have been allowed to merge, consolidate, acquire and expand, creating regional healthcare delivery monopolies with impunity over the past eight years of Herring’s tenure (and longer).

I have no explanation for Herring’s inconsistent application of principles, but I don’t suppose it matters one way or the other with his term due to expire in two months.

I have high hopes that Attorney General-elect Jason Miyares will take a more aggressive pro-competition, pro-consumer stance. I expect that he, as a Republican, will prove supportive of free markets as a general ideal. But Republicans have been known to compromise free-market principles when confronted with the pleadings and campaign contributions of special interest groups. Bacon’s Rebellion will keep a close eye on the new AG.