Judge dismisses Opternative's suit against South Carolina eye care law

By Dave Muoio
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In 2016, Opternative, a Chicago-based telehealth startup offering online refractive eye exams, opened a lawsuit against South Carolina’s Board of Medical Examiners and Department of Labor, Licensing, and Regulation alleging that a newly passed law restricting online eye exams was protectionist, unconstitutional legislation.

On Friday, Judge DeAndrea Benjamin of the Fifth Judicial Circuit in Columbia, South Carolina dismissed Opternative’s case on the grounds that the company had failed to demonstrate proper standing — a personal stake in the matter of the lawsuit.

Because Opternative could not adequately demonstrate any of the three conditions required to establish proper standing — “injury in fact,” concrete proof the law invades Opternative’s legally protected interests; a causal connection between this injury and the challenged action of the defendants; and potential redress resulting from the law being overturned — Benjamin dismissed the case without addressing whether or not the law itself was constitutional.

“Where a private party seeks to have a statue declared unconstitutional, it must first demonstrate that it has standing,” Benjamin wrote in her decision. “… Plaintiff has failed to demonstrate that it has standing to bring this claim. The Court declines to address any equal protection and due process arguments in light of its conclusion that Plaintiffs fail to demonstrate standing.”

While supported by the American Optometric Association, The Eye Care Consumer Protection Law was initially vetoed by South Carolina Governor Nikki Haley before being overturned by the legislature. At the time, the governor said that the law “uses health practice mandates to stifle competition for the benefit of a single industry, effectively banning eye care kiosks statewide,” and noted that the bill was the effort of “a small group of eye care professionals” to block low-cost alternatives.

While Benjamin’s decision acknowledged Opternative’s claim that the law directly impacts the company’s business model, she noted that it did not prevent licensed ophthalmologists from using the technology to assist with their own work, making it “unclear that the Defendants are perpetuating the injury.”

Despite the decision, representatives from the Institute for Justice, a national libertarian law firm that brought the case on behalf of Opternative, said that the firm will continue their efforts to overturn the law, which they argue remains inherently unconstitutional.

“No one has to change their behavior in order to comply with an unconstitutional law,” Institute for Justice Senior Attorney Robert McNamara said in a statement. “We plan to continue this fight until we vindicate the basic principle that states cannot use public power to protect private businesses. Patients and doctors, not state legislators, should be managing their own healthcare decisions, and we are determined to put that power back in their hands.”

These efforts would continue to overlap with Opternative’s other ongoing legal battle with online glasses retailer Warby Parker, which broke late last year. The second suit alleges that Warby Parker’s Prescription Check was based on proprietary information obtained from Opternative under a nondisclosure agreement, which Warby Parker denies.