As important as these state challenges to compulsory insurance are, they gloss over an issue that is more consequential to our health and longevity: Can the federal government dictate how doctors treat their patients? During the past half-century, the Supreme Court has established a zone of privacy protected by the Constitution. It includes a couple’s choice to use contraception recommended by their physician (Griswold v. Connecticut, 1965) and a woman’s choice to have an abortion provided by her physician (Roe v. Wade, 1973 ). How can freedom to make these choices with your doctor be protected, but not freedom to choose a hip replacement or a cesarean section? Either your body is protected from government interference or it’s not.
The Obama health law requires that nearly everyone enroll in a “qualified” plan, then it says plans can pay only doctors who implement whatever regulations the Secretary of Health and Human Services imposes to im prove health care “quality” (Section 1311 ). That covers everything in medicine. If challenged, this provision is likely to meet disapproval from a pro-privacy Court.
Consider how the high Court ruled one year after the Raich decision. Oregon had passed a Death with Dignity Act that set standards for doctors to administer lethal drugs to terminally ill patients who request them. The Bush administration argued that assisted suicide was not “legitimate” medical care; therefore, federal agents could halt the use of the drugs. The Supreme Court ruled 6-3 against the Bush administration’s interference in Gonzales v. Oregon (2006). Such intrusion, the Court said, “would effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality.” That’s what the Obama health law does.
For example, it requires doctors to record patients’ treatments in an electronic medical database and monitors doctors’ decisions. Dr. David Blumenthal, the Obama administration’s national coordinator for health information technology, explained in The New England Journal of Medicine in April that “embedded clinical decision supports” – his euphemism for computers telling doctors what to do – will manage the quality of doctors’ decisions. The Supreme Court is likely to view these controls as a “radical shift” in authority from the states to the federal government, and even more importantly, a threat to privacy rights.
Before the current health care debate, the public discussed government interference in medical decisions largely in one context: abortion. When a lower federal court struck down the Partial-Birth Abortion Ban Act in (a decision later reversed by the Supreme Court), Planned Parenthood President Gloria Feldt said, “This ruling is a critical step toward ensuring that women and doctors – not politicians – can make private, personal health care decisions.” During the litigation, federal authorities requested access to medical records to determine whether the partial-birth procedure was ever medically necessary. Privacy advocates defeated nearly every request. Advocates for women’s rights need to reassess the impact of the new health law. Whether you are a man or a woman, prochoice or pro-life, you lose freedom and privacy under this law.
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