Yesterday, the Wall Street Journal had some coverage on existing Supreme Court of the United States case law, privacy rights and their implications for government health care.

The Supreme Court created and guarantees the right to privacy, which is justified by the Fourteenth Amendment: "… 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.” That is, the courts guarantee Americans a right to personal autonomy over their lives and prohibit the government from infringing on that right.

It’s the type of language that’s responsible for the 1974 Roe v. Wade decision, which was (moral issues aside) justified by the right of a woman to elect to have a procedure done on her body. The Journal points out:

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?

This type of “burden” analysis will be especially problematic for a national health system because, in the health area, proper care often depends upon an individual’s unique physical and even genetic history and characteristics. One size clearly does not fit all, but that is the very essence of governmental regulation — to impose a regularity (if not uniformity) in the application of governmental power and the dispersal of its largess. Taking key decisions away from patient and physician, or otherwise limiting their available choices, will render any new system constitutionally vulnerable.

It would be nice to think that lawmakers would take the Constitution into account when writing their reform proposals, but since there is nothing in the Constitution that allows the federal government to have any jurisdiction at all over health care, I won't hold my breath. It is heartening, though, to hear that lawmakers might not be able to escape the courts.

Anyone who imagines that Congress can simply avoid the constitutional issues — and lawsuits — by withdrawing federal court jurisdiction over the new health system must think again. A brief review of the Supreme Court’s recent war-on-terror decisions, brought by or on behalf of detained enemy combatants, will disabuse that notion. This area of governmental authority was once nearly immune from judicial intervention. Over the past five years, however, the Supreme Court (supposedly the nonpolitical branch) has unapologetically transformed itself into a full-fledged, policy-making partner with the president and Congress.

In the process, the justices blew past specific congressional efforts to limit their jurisdiction and involvement like a hot rod in the desert. Questions of basic constitutionality (however the court may define them) cannot now be shielded from judicial review.

You can read the rest of the article here.

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