Legal News

On the Constitutionality of a New Health-Care System

By Ashby Jones

Granted, the details of this year’s health-care reform bill have yet to take solid form. But when the ink dries, one thing seems fairly certain: that the government will play some sort of role in determining the course of medical treatments for many Americans.

That alone — the government calling shots on when, whether and how to treat patients — could well have constitutional ramifications, write David Rifkin and Lee Casey, a couple of lawyers in the Bush I administration now both at Baker & Hostetler, in an opinion piece in Monday’s WSJ.

According to the authors, the same “right to privacy” arguments used — and upheld — in Griswold v. Connecticut, Roe v. Wade and Planned Parenthood v. Casey, could be used to challenge individual decisions made by government concerning health care.

For instance, the court explained in Planned Parenthood v. Casey (1992): “these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.”

Write Rivkin and Casey:

It is, of course, difficult to imagine choices more “central to personal dignity and autonomy” than measures to be taken for the prevention and treatment of disease — measures that may be essential to preserve or extend life itself. . . .

If the government cannot proscribe — or even “unduly burden,” to use another of the Supreme Court’s analytical frameworks — access to abortion, how can it proscribe access to other medical procedures, including transplants, corrective or restorative surgeries, chemotherapy treatments, or a myriad of other health services that individuals may need or desire?

In other words, expect a privacy-based lawsuit any time the government declines a procedure:

It is, of course, impossible to predict how and when the courts will ultimately rule on the new health system. . . . In crafting the law, however, its White House and congressional sponsors must keep privacy — that near absolute right to personal autonomy they have so often praised and promoted — squarely before them. The only thing that is certain today is that the courts, and not Congress, will have the last word.

LBers, we’d love to hear your thoughts on this.

Full post as published by Law Blog - WSJ.com on June 22, 2009 (boomark / email).