Will Roe v. Wade Sink Obamacare? Mississippi Is Set to Find Out

by K. Douglas Lee

This past Monday, we trained our guns on the SS Obamacare; we aimed for the waterline.  The smoke hasn’t yet cleared, but we’re pretty sure it’s taking on water in a big way.  Our case attacking the constitutionality of Obamacare is in the federal District Court for the Southern District of Mississippi.  The government filed a motion to have our case dismissed, and yesterday we filed our response, which can be found here:  Response to Government’s Motion to Dismiss

Judge Keith Starret will now have to decide many issues, including whether the individual mandate is a tax or a penalty.   On October 14, Florida’s Attorney General received a powerful ruling in his state’s attack on the Patient Protection and Affordable Care Act (PPACA) from the federal District Court for the Northern District of Florida.  The opinion in that case says that the “individual mandate” is a penalty, not a tax.  That ruling is vital, because the Constitution gives Congress a great deal of power when it comes to taxing us, but not nearly so much when it comes to penalizing us.  There’s also a very old statute called the Anti-Injunction Act that the government is using as a defense, which only applies to lawsuits against taxes.

In short, the government is saying “we win because this is a tax.”  The only problem is that the mandate is quite clearly not a tax.  The individual mandate is simply a command by our government that each individual who does not have health insurance coverage go out and buy it, whether he or she wants it or not.  This dictate is enforced with a penalty — either buy the insurance, or face the penalty.  Congress specifically called this provision a “penalty” eighteen different times in Section 5000A alone; not one time in over 2,700 pages did Congress ever refer to it as a “tax.”   Even President Obama has insisted that the individual mandate is not a tax.

What I really want to talk about, though, is something we constitutionalists get very excited about:  the Right to Privacy.  Our case is the only anti-Obamacare action that co-opts the Liberal’s sacred decision in Roe v. Wade in support of our cause.

It works like this:  in order to obtain insurance, you have to apply for it, which means you have to reveal a lot of things to the insurance company and give them carte blanche to gather your medical records at will.  After all, how can they possibly bill you if they don’t have access to your medical records?  Obamacare thus mandates not only that you enter into a contract with an insurance corporation, it also mandates that you play by that corporation’s rules and divulge to it your most intimate and sensitive information.

Starting with Griswold v. Connecticut in 1965, the Supreme Court began to recognize that not all of the rights guaranteed by the Constitution are explicitly spelled out in the Bill of Rights, but that that various guarantees in the Bill of Rights create “zones of privacy. ” Griswold recognized that some of these privacy rights are very old, predating our country by centuries, and must therefore be considered “fundamental.”  The specific issue in Griswold was the right to marital privacy:

We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.

Griswold v. Connecticut, 381 U.S. 479, 486 (1965).  Similarly, the right to medical privacy is older than our Constitution, in some respects as old as Western Civilization itself.   The oldest surviving example of medical privacy in Western civilization is the physicians’ duty of confidentiality formulated in the fifth century B.C. by the Hippocratic Oath, by which a physician promised: “[W]hatsoever I shall see or hear in the course of my profession, as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things shameful to be holy secret.” Robert M. Gellman, Prescribing Privacy: The Uncertain Role of the Physician in the Protection of Patient Privacy, 62 N.C. L. REV. 255, 267-68 (1984) (quoting 1 Hippocrates 164-65 (W. Jones trans. 1923), reprinted in Ethics In Medicine 5 (S. Reiser et al. eds., 1977)).

The decision in Griswold unfortunately led to the infamous decision in Roe v. Wade, which in turn resulted in the slaughter of over 40 million innocent unborn children in our country to date.  However, even though the privacy issue Roe related to abortion, the Supreme Court did not find a “right to abortion” in the Constitution.  Instead, the Supreme Court’s decision created a broad “zone of privacy” that included not only abortion but more generally the right “to care for one’s health and person,” as Justice Douglas stated in his concurring opinion:

It is one thing for a patient to agree that her physician may consult with another physician about her case. It is quite a different matter for the State compulsorily to impose on that physician-patient relationship another layer or, as in this case, still a third layer of physicians. The right of privacy – the right to care for one’s health and person and to seek out a physician of one’s own choice protected by the Fourteenth Amendment - becomes only a matter of theory, not a reality, when a “multiple physician approval” system is mandated by the State.

Doe v. Bolton, 410 U.S. 179 (1971) (Douglas, J., concurring).

Clearly, the PPACA interferes with each person’s right to “care for one’s health and to seek out a physician of one’s own choice” as each individual sees fit.  Notice also that Justice Douglas was not just concerned about privacy outside of the physician-patient arena (such as when insurance companies receive private medical information), he was concerned that the government not be allowed to impose additional physician-patient relationships on a person.  In other words, even forcing a person to divulge private medical information to a doctor not of her own choosing was deemed untenable by Justice Douglas – to force a person to divulge private medical information to an insurance corporation certainly is even more untenable from a constitutional standpoint.

Medical treatment providers gather together the most private details of our lives, details that could be devastating to a patient’s personal, social, and professional life if revealed to third parties.  The government contends that we can trust insurance companies because those corporations must abide by HIPPA.  Indeed, an individual who believes that the Privacy Rule is not being upheld can go through the complex process of filing a complaint with the Department of Health and Human Services Office for Civil Rights (OCR).  However, according to the Wall Street Journal, the OCR has a long backlog and ignores most complaints. “Complaints of privacy violations have been piling up at the Department of Health and Human Services. Between April 2003 and Nov. 30, the agency fielded 23,896 complaints related to medical-privacy rules, but it has not yet taken any enforcement actions against hospitals, doctors, insurers or anyone else for rule violations.”  Theo Francis Spread of records stirs fears of privacy erosion, Wall Street Journal, December 28, 2006.  Doesn’t exactly instill a great deal of confidence in the privacy of your medical information, does it?

The beauty of using Griswold, Roe and their progeny is that the courts will have to either agree that they encompass a broad right to medical privacy, or they will have to weaken the holdings upon which the “right” to an abortion is founded.  Ruling for us does not strengthen Roe, but ruling against us will weaken it.

The petitioners in our case do not want to be forced into purchasing health insurance, or forced into divulging (on a continuous basis) the most intimate, private details of their lives.  Congress has seriously overstepped its bounds in dictating to us that we must do these things.  We are certainly looking forward to hearing what the federal court for the Southern District of Mississippi has to say about this unprecedented — and blatantly unconstitutional — power grab by Congress.


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Posted Nov 20th 2010 at 6:06 am in Featured Story, Healthcare, Justice/Legal | 220 Comments