Comments (14) | Add a comment
Thomas Mitchell
Challenging ObamaCare on the right to privacy
Updated: Sep. 5, 2010 | 10:09 a.m.
When the various states filed suit against the federal government over the constitutionality of the Patient Protection and Affordable Care Act, pejoratively known as ObamaCare, they listed as grounds for action the 10th Amendment and the Commerce Clause.
The 10th reserves rights not granted to Congress to the states and the people, so the suing attorneys general argued health care is not enumerated in the Constitution and is therefore the realm of the states. The Commerce Clause allows Congress to regulate commerce among the states, so they argued that failing to buy insurance is not commerce, and certainly not interstate commerce.
Nevada is one of the states suing. When Democratic Attorney General Catherine Cortez Masto refused Republican Gov. Jim Gibbons' demand that she file suit on behalf of the state, the governor obtained private legal counsel to file for the state.
On Tuesday, a Las Vegas lawyer filed a lawsuit in Nevada's federal court challenging the health care reform act on those grounds and several others that strike at the heart of constitutional protections. One of his grounds is a fundamental right found nowhere in the Constitution, but one that has been extrapolated to exist over the past century by Supreme Court justices and legal scholars.
That is the right to privacy.
The lawsuit was filed by Independent American Party attorney general candidate Joel Hansen on behalf of his political party, the groups People v. U.S. and Nevada Eagle Forum, as well a number of individual political activists. The plaintiffs include the president, the United States of America, the U.S. Department of Health and Human Services and several ranking government officials.
ObamaCare mandates everyone purchase "qualified" health insurance or pay a fine called a "shared responsibility payment." Hansen estimates the fine would amount to nearly $4,000 by the year 2020 for his plaintiffs. Like the states in their lawsuit, Hansen argues this is a constitutionally prohibited capitation or direct tax.
Where Hansen leaps out from the conventional arguments is in the realm of privacy -- by pointing out that in order to obtain the required private health insurance under duress of threatened fine, one must reveal private, personal information through urine and blood samples, DNA and the results of mental and physical examinations.
Hansen cited numerous court cases on this point, including Roe v. Wade, which found a privacy right to abortion that the states could not contravene. "Thus, if a choice is sufficiently private or personal, the Courts must recognize the right as implicit in the concept of ordered liberty. The decision not to divulge medical confidences to a private insurer or its agents to obtain health insurance; not to receive medical treatment or treatment of a particular kind; and not to pay for unwanted treatments are private and personal choices," he writes.
According to Seth Lipsky's "The Citizen's Constitution: An Annotated Guide," the Supreme Court found the privacy right in the 14th Amendment Due Process clause, which bars states from depriving any person of "life, liberty, or property, without due process of law."
Liberty equals privacy.
Lipsky quotes Justice Sandra Day O'Connor in a case that followed Roe and solidified it. O'Connor wrote, "The controlling word in the case before us is 'liberty.' Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years the Clause has been understood to contain a substantive component as well, one 'barring certain government actions regardless of the fairness of the procedures used to implement them'
"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."
Hansen's lawsuit also made a First Amendment argument, saying ObamaCare violates the protection for freedom of association by compelling membership in a "qualified" private health insurance plan.
He quoted case law stating "freedom of association plainly presupposes a freedom not to associate."
Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and a free society. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.
Comments
Terms & Conditions
The following comments are provided by readers and are the sole responsiblity of the authors. The Review-Journal does not review comments before publication nor guarantee their accuracy. By publishing a comment here you agree to abide by the comment policy. If you see a comment that violates the policy, please use the Report Abuse button.
Some comments may not display immediately due to an automatic filter. These comments will be reviewed within 24 hours. Please do not submit a comment more than once.
Note: Comments made by reporters and editors of the Las Vegas Review-Journal are presented with a yellow background.
RSS
Twitter
Facebook
@steven.alexander/@nypete
You don't seem to understand the difference between a delegated power, and a reservation of Rights. The two are as different as night and day.
The Constitution delegates certain enumerated powers to the government.
The Constitution also protects a vast array of Rights FROM INFRINGEMENT BY the government. Some of these the people felt were so important that they should be individually mentioned, thus we got the Bill of Rights. To suggest that just because a Right is not specifically mentioned in the Constitution it doesn't exist just demonstrates your ignorance.
Have you actually read the Constitution? What about the Federalist and Anti-Federalist papers or Elliot's debates, which go into great detail as to what is meant by each and every clause and/or term? Many of the Founders were against the Bill of Rights, precisely because they felt that to specifically mention any Right might eventually lead to claims that any Right not specifically enumerated would not be protected - just like you are doing now.
If, as you suggest, Rights must be enumerated or they don't exist, what then is the purpose of the 9th (imo the most powerful and most ignored) amendment?
This is all based on the hope that the Supreme Court Justices have read the Constitution. Two Obama appointees have no real law experience except their feelings and an appointment calling them a Judge. And that is what is important to them and the rule of law.
By the way, I do wonder whether the editors of the R-J believe in the constitutional right to privacy. After all, one cannot find it anywhere in the Constitution, and the concept would have been completely alien in the late eighteenth century. And it is quite clear that Justice Scalia and Justice Thomas don't believe in it.
1. I hope everyone appreciates the irony of someone relying on an "unenumerated" constitutional right to attack health reform on the grounds that it is grounded on allegedly "unenumerated" powers.
2. The "privacy" argument is, of course, bogus. Almost as bogus as the assertion that a healthcare system that comprises one-sixth of the United States economy does not constitute "interstate commerce."
Mr. Mitchell: I did not say you embrace this. I just point out a few logical points to Hansen's and the others arguements with the 10th amendment. We'd never get health care if they win. We'd never have health care with their aguement, if I am understand this. Only empty promises and then the policy holders would have to go back to sueing like before and get nowhere and loose all that money. Health care is taking a great big chunk out of the GDP. Especially for us near seniors and seniors to the point where we are suffering and/or dying for no reason. I've given up on heath care for me and suffering through. It's not easy.
Tom: Its fascinating that you post the piece by Brandeis and Warren. I read it, I wonder how by now well known positions about the near absolute rights contained in the First Amendment contrast with what they wrote? I would also note that these guys were discussing civil causes of action, against private parties. A significant difference obviously exists between that and the recognition of a right to privacy against which the government may not act to impair. In that context, its not unbelievable, or maybe even relevant, that Brandeis was saying that the law was in flux, and that it needed to grow as the country has grown, but is this what you believe the law should be doing? I mean, if the right to privacy is considered but a new law, that has evolved as the country has evolved, how does that impact your previously expressed beliefs about the "original intent" of the Constitution? Are you agreeing with Brandeis here or not?
You said, without opposition or any negative reference, that one of his arguments was that the right to privacy was a "fundamental right found nowhere in the Constitution, but one that has been extrapolated to exist over the past century by Supreme Court justices and legal scholars." Leading any reasonable person to believe that you agreed with his position. However, your constant position in every other article you write about unexpressed "rights" is that they do not exist and that it would be only the act of a "liberal judicial activist justice" to either espouse or God forbid "find" such "rights". And you further go on to equate "liberty" with privacy. Are you saying that you believe there is a right to privacy Tom? And if you are, why not just come out and say it? And if you do believe there is one within the "penumbra" of rights how do you justify that in light of your "professed" claims that the Constitution means what it says and nothing more? Seriously. I'm interested in knowing how you internally justify your seemingly contradictory positions.
I said it was an interesting argument. I never said I fully and wholly embraced it. As for prior to 1960, and "one that has been extrapolated to exist over the past century by Supreme Court justices and legal scholars": Brandeis and Warren in 1890 in "The Right to Privacy" in the Harvard Law Review:
http://faculty.uml.edu/sgallagher/Brandeisprivacy.htm
So the Military and Veterans care set up is unconstitutional? The gov't have all records. So the insurance companies are going to force me to take a urine and blood test to get insurance and want privite info? Pre exsisting conditions in which the insurance company took premium money and did not give medical care until now with Obamacare. A young uninsured person in the emergency room who ends up in the system because of no insurance and the state has to pay for his/hers accident or illness with my taxes AND his records are passed from doctor to clinic to doctor and a different doctor most of the time. Anyone can view easily. Isn't that in violation of the 10th? Now, how much money from the state and other gov't sources is Joel Hansen getting to violate my right to get insurance. Because right now I have none. It is far too expensive and I need medicine and cannot get it because I am not in the state's messing setup. I'd never get care anyway. And I am unemployed to get it. But, I still pay taxes. And if you tell me that the lawsuits are not costing the state of Nevada, that's Dumbs--t! We still pay the court people and the judge. Also Canadian care is great. All are covered and Canadians live longer than Americans. Why can't it be here? The insurance companies would not get the high profits. GREED!
Rasputin: The fact that you disagree with what I wrote, doesn't make your pure attack post any more reasoned, in fact, it just continues to demonstrate you complete lack of ability to discuss a subject using anything but attacks. I guess the fact that Tom either lied, or is unaware of the fact that a "right to privacy" wasn't found until 1965 belies his assertion that this is a "century old" principle. Furthermore, the fact that Tom persistently claims, in the face of his obvious hypocrisy, that he holds to a strict constructionist viewpoint of all things Constitutional, flies in the face of everything he wrote here. There is no "right to privacy" expressed in the Constitution and yet Tom favorably cites to one because some right wing quack wants to use it in his argument against a clearly constitutional law. I know you don't know anything about the law, or the Constitution for that matter, and Tom doesn't either, but before you make yourself look even less informed, please take it outside. Thanks again!