In January 2021, the Pelican Center for Justice, along with Pacific Legal Foundation, filed a lawsuit on behalf of New Orleans social worker Ursula Newell-Davis. Ursula’s lawsuit challenges the constitutionality of Louisiana’s facility need review (FNR) laws. These laws prevent social workers like Ursula, who have a passion for helping at-risk children, from working in their chosen field.

Ursula wants to open a business to provide respite care to at-risk children. She wants to use her time with the children in her care to teach them basic life skills or make sure their homework is completed while their parents are away. Despite a demand for her services, being a social worker for 20 years, and while being fully qualified to provide those services, the state of Louisiana will not allow her to work until she goes through the FNR process. This process forces providers to accomplish the nearly impossible task of proving that their services are “needed,” which is why Ursula and others who applied for approval in 2019 were rejected.

Louisiana’s FNR procedure is not designed to protect the health and safety of its citizens. Instead, it is an unconstitutional burden on Ursula’s right to earn a living. The FNR process only serves to insulate existing providers from competition, thereby reducing access to care in underserved communities while driving up the cost of care. Under the Due Process and Equal Protection provisions of the U.S. and Louisiana constitutions, the government may not pursue simple economic protectionism, and FNR bears no rational relationship to any other legitimate government interest.

Unfortunately, after a year of discovery, fact-finding, and motion practice, a judge in the Eastern District of Louisiana determined that the FNR process was constitutional. The judge ruled, in part, that Louisiana’s FNR process serves a legitimate public interest even though it protects incumbent providers over would-be new market entrants like Ursula. The Court determined that the state could ask an applicant to establish a need for its services before moving forward with the licensing process because the licensing process itself is resource-intensive and costly. Therefore, FNR enhances consumer welfare by allowing the Department of Health to prioritize post-licensure compliance surveys that ensure client health and safety over initial licensing surveys.

Ursula’s case is far from over. We filed a notice of appeal with the U.S. Fifth Circuit shortly after receiving the Eastern District’s ruling. We will provide updates on Ursula’s fight for her right to earn a living.