Health care bill violates privacy rights

The new you-gotta-buy-health-insurance law violates privacy rights found in Article I, Section 7 of the Washington State Constitution, and in the federal 1st, 4th, 5th and 9th Amendments.

The feds shouldn’t be able to force me to buy a private good, namely, health insurance. I should be able to opt out of the socialized health insurance pool.

This privacy argument against the individual mandate is in addition to the 10th Amendment argument against it (overbearing federal law violates states rights), and the Commerce Clause (Art. I, Sect. 8, para. 3) argument that there’s no authority or constitutional grant of power for the feds to do this.

Democratic Obama care and Republican Romney care (Massachusetts) require everyone to buy health insurance (except the poor, and Christian Scientists, whose religious beliefs oppose modern medical treatment).

This pro-privacy view opposing the you-must-buy clause is summed up in Justice Cardozo’s famous quote in Schloendorf v. Society of New York Hospital (1914): “Every human being of adult years and sound mind has a right to determine what shall be done with his body.”

No law may unreasonably interfere with a person’s right to be let alone, and so held the U.S. Supreme Court in Papachristou v. Jacksonville in 1972 and the Washington State Supreme Court in Seattle v. Drew in 1967. The federal mandate violates two specific sub-rights that make up the right to privacy, or the “right to be let alone.” They are the rights to bodily integrity, and to making important personal decisions.

The right to bodily integrity stems from Olmstead v. United States, a 1928 U.S. Supreme Court case; Skinner v. Oklahoma (1942) – forced sterilization of criminals not allowed; Rochin v. California (1952) – forced stomach pumping not allowed; Griswold v. Connecticut (1965) – right of unmarrieds to get birth control; and maybe the most famous U.S. Supreme Court case ever, Roe v. Wade (1973) – right to abortion.

The right to make personal decisions stems from Meyer v. Nebraska (1923) (upholding parents’ rights to decide that a foreign language can be taught to their kids); Pierce v. Society of Sisters (1925) (upholding parents’ right to decide that their child can go to a private school); Whalen v. Roe (1977) – affirming the rights to marriage, procreation, family relationships, child rearing and education); Loving v. Virginia (1967) – upholding the right to inter-racially marry.

And it clearly is an important decision whether to get health insurance, and whether you should register your body with the state. This kind of personal decision implicates the aforesaid privacy cases that should be used to strike down as unconstitutional this new health bill’s mandate that all citizens buy health insurance.

Jeff E. Jared is an attorney and political writer in Kirkland who writes from a libertarian and law-and-economics perspective.


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