Hospitals’ Free Speech Argument on Prices Draws Wary Response

The legal fight over the Trump administration rule requiring hospitals to publicly list their prices and the discounts they give insurance companies is testing the bounds of free speech protections.

Health-care industry groups and two private hospitals are using the First Amendment to try and block the Department of Health and Human Services rule before it takes effect in January 2021. The American Hospital Association, which is leading the challenge, argues the rule unconstitutionally compels each hospital in the nation to publicize on their websites a huge quantity of confidential pricing information.

At stake in the litigation is the government’s authority to curb the rising cost of health care. The Centers for Medicare & Medicaid Services in 2018 projected national health spending to grow at an average rate of 5.5% per year and reach nearly $6 trillion in 2027. The HHS believes the rule will help increase competition in the health sector and drive down the cost of services, making them more affordable for everyone.

But convincing a federal judge the new regulation is unconstitutional may be tough because similar disclosures are already required in other areas of commerce.

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