Is Government Health Care Unconstitutional?

David Rivkin and Lee Casey consider this question in today’s Journal, explaining that the Supreme Court’s abortion jurisprudence limits the government’s power to unduly burden choices about healthcare:

It is, of course, difficult to imagine choices more “central to personal dignity and autonomy” than measures to be taken for the prevention and treatment of disease — measures that may be essential to preserve or extend life itself. Indeed, when the overwhelming moral issues that surround the abortion question are stripped away, what is left is a medical procedure determined to be “necessary” by an expectant mother and her physician.

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?

If only the right to privacy had so much influence in government decisionmaking!

I don’t even know where to start with Rivkin and Casey’s argument, except to say that privacy is not going to stop government-supported (or even government-dominated) healthcare. But it is fun to see the conservatives get all libertarian on you once they’re out of power. We’ll be hearing “privacy this” and “my rights that” a lot. Where were those rights during the warrantless wiretapping and FISA debates, by the way?


29 responses to “Is Government Health Care Unconstitutional?”

  1. “Where were those rights during the warrantless wiretapping and FISA debates, by the way?”

    Uuhh…the same place the Obama administration put them.

  2. Uh. I don’t get the argument. Universal healthcare isn’t about proscribing treatments, it’s about prescribing them. How can it possibly be construed to be all about preventing peoples’ access to treatments?

  3. Sean Case

    Well, commercial health insurance is all about preventing people from getting healthcare, so they assume that a government scheme will be the same.

  4. Mystyk

    I’m just so disgusted by what has happened in the health care “debate.” Conservatives are so worried about those “poor, private insurers,” despite the fact that our health care system is broken in large part because of them. Driving up administration costs, fighting reimbursements for covered procedures, keeping many procedures unavailable, and preventing most people from receiving proper care until it’s so late that they’re rushed to the ER and ICU.

    I think the question should be shifted more to a “supplement” system: The government provides health insurance for a well-defined set of procedures, and sets a price for what the coverage is “worth.” Most other private insurance would supplement this with additional coverage for things the government plan does not itself cover. An option would be available to purchase “full coverage” private plans, and instead of receiving government benefits at all the government would issue a credit for that predetermined amount to the insurance agent on your behalf. You would then pay the difference between your full plan and the government credit.

  5. Kagehi

    But Mystyk, it would be “communist” to do it, and well.. the rick assho… uh, Republicans, don’t think they (umm, anyone) should have to wait in bread lines to get health care (like the rest of us currently do).


  6. @Kagehi: I think you’re on to the major issue here. I was recently talking to my conservative brother who does well financially. He said that even if a national plan would benefit the poorest, he would have no reason to support it because he already has good insurance. Here we see a pretty central idea to conservatism – self-centeredness.

    In any case, Obama has said over and over that if you are happy with your current insurance, you can keep it. And most of the universal plans out there have the option for private insurance. So given that you still have a choice of insurers, how would the government “unduly burden choices about healthcare”?

  7. But wait, if Government paid for health care is unconstitutional, then why don’t they go after Medicare and the VA? It it is illegal for some US residents, it is illegal for all US residents.

    The reason is that health care for the elderly is expensive, so no health insurance company wants to try and skim money from it because it is too much work. They would rather skim money from the healthy young people.

  8. “In any case, Obama has said over and over that if you are happy with your current insurance, you can keep it. And most of the universal plans out there have the option for private insurance.”

    A few conservatives I’ve spoken with on the issue have a concern about that. They point out that a lot of Americans get their insurance coverage through employment – unless they want to pay a lot more, it’s their employer who gets to dictate which insurance company they get. The purpose of the employer is usually to make money: It is their duty to minimise expenditure, and so if they see any way in which they could cancel health insurance and dump the costs onto the government, they’ll take it.

  9. How mind bogglingly ignorant. A publicly sponsored health insurance plan — of which there are already 3 major federal examples and at least one in every state — pays for some limited menu of benefits. That does not prevent anybody from going to the homeopath or hiring a plastic surgeon to make them look like a proboscis monkey if that’s what they want to do. Right now, Medicaid programs won’t pay for abortion under most circumstances, but that doesn’t mean that Medicaid somehow restricts people’s right to abortion.

    I mean this is just idiotic.

  10. David

    Anyone here ever read the federalist papers? ( Does anyone here know their history? Individualism is central and necessary for a functioning civil society. The gov’t’s powers are specifically enumerated in the constitution and associated amendments. All other rights go directly to the states and the people.

    Emergency care is already provided – no questions asked. Ultimately this debate comes down to people wanting free/discounted health care insurance. The argument is that it is a right. That’s garbage. As people often say, you have the right to pursue happiness – but not to be happy. You do not have a right to a company’s money to pay for health care costs. You do not have a right to take my money (through taxes) to pay for it either. I would have issues if insurance companies were denying someone coverage not because they can’t pay for it or because of a condition they acquired through neglect, but because of race, culture, or something they could not help (e.g. cancer, disease, etc.). And in that case, you lobby congress to enact laws to change that. Companies have rules in place for determining what they can and cannot accept. I do not fault them for that. If they deny you, keep searching. There are plenty of alternatives out there. And don’t give me any B.S. on how that’s not possible. If you think that, you must be lazy. My grandma and I were able to find supplemental insurance for my 84 year-old grandfather after he had a stroke and became paralyzed on his left side. It wasn’t easy, but we did it. And I was grateful that we lived in a society where we could do that at all.

    The solution is not to throw out what we have, but to find the real problem and fix it. For me, that’s figuring out why the cost of health care has skyrocketed and fixing it so private citizens can afford their own coverage. We don’t immediately run to the gov’t (who, btw, has a wonderful track record with medicare, medicaid, social security, etc.) to fix all our woes. That’s probably one of the worst things we could possibly do. In the 1950s, giving birth would cost you around $60-100. Adjusted for inflation, that would be ~$500-600 today. Why, then, does it cost us $20,000 (that’s how much it cost my wife and I when we had our baby a couple of years ago)? Thank goodness for our insurance! But that’s the real issue (and no, I do not work nor have ever worked for an insurance company). Politicians like to turn it into something it’s not in order to garner more votes and create a larger voter pool dependent on gov’t programs and, consequently, dependent on them to ensure the program lives on forever.

    Really, the whole debate is a straw man. Just my $0.02.

  11. LanceR, JSG

    Really, the whole debate is a straw man.

    And that’s the only true thing you wrote.

    You already pay for “emergency health care”. The “they can’t afford it” and “acquired through neglect” comments are pure red herrings.

    Why is healthcare so expensive? Million dollar executive salaries. Multi-million dollar bonuses. The profit motive that values dollars over public well-being.

    I said it before: we are a society. Public healthcare is no more theft than is public police and fire. If you don’t like it, you are free to leave.

  12. David

    The health care cost is multifaceted. A large driving factor is the outrageous medical malpractice costs for doctors/medical professionals due to frivolous lawsuits. Check this article out in case you hadn’t heard: . There’s also the problem that gov’t plans only reimburse doctors 60-70% of the total cost. Hospitals and clinics have to make up the cost elsewhere.

    Don’t be so quick to judge executives. I’m sure you go to work every day with the very pie-in-the-sky notion of serving the general public as best you can. I’m sure it’s not because you need the $$$ to pay your bills, mortgage, buy food and clothing, pay for the Internet connection you’re using to read this, save for retirement, pay for college tuition/loans, etc. If you were offered a million dollar salary, would you take it? Are you therefore a bad person for having done so? Is it a surprise to anyone that insurance companies are in it for the money? Honestly? Are they bad people for providing a service at a cost?

    Having money does not automatically make you greedy or bad or whatever. All it means is: you have money. Nothing else. What makes you a bad person is what you choose to do with it. Al Gore is rich beyond belief, yet donates very little (proportionally). A lot of people are making a lot of $$$ off of “green” technologies. Nobody seems to be complaining. I make pittance in comparison and yet donate over 10% of every paycheck to charity.

    The executive salary issue is a straw man. Just sounds like someone who’s bitter they’re not making as much as the executives.

    A side issue to the whole debacle, really, is if the gov’t has any business getting its nose into this. I see 2 sides to that – you believe the general welfare clause of the constitution enables this or you think it’s being exploited as a loophole contrary to its original intent (read the federalist papers for a clue).

    Again, I believe it’s simply a tactic to garner more votes through greater gov’t dependency. It’s about power. Nothing more, nothing less.

  13. @ LanceR, JSG

    Actually if you don’t like it, you can leave. The US Constitution doesn’t give the government power over health care.

    If anything it should be a state solution.

  14. LanceR, JSG

    The US Constitution doesn’t give the government power over fire services, police services, or speed limits, either. So what’s your point?

    There is not a hard division between the government and the people. If you’ll give it another look, I believe you’ll see the first three words are “We, the People”. We, the people are saying that we *want* government health care. In some polling, by about a 2 to 1 margin. What part of that is so hard to understand?

  15. Tim baggstrom

    -How many suffering people do you know trying to go to another country for health care?
    -If the quality of care is good why make major changes to the system that helped develop that care?
    -Is not the issue how to make health care more affordable?
    -Should we use the system the Federal government provides us to enact laws over 300 million people that will take income from some and provide a free service to others?
    -Does the answer have to be a one time 1000 page bill?
    -Are there any similar US “pilot” examples of this being used on a municipal,county,or state level that can be studied?
    -Is any of the legislation using or supporting volunteer affordable health care used in many communities?
    -Is there a lesson in the power of volunteerism and how it supplies such a large part of the blood in our blood banks?

    Lets slow down and approach the problem with the responsibility a private company would

  16. LanceR, JSG

    How many suffering people do you know trying to go to another country for health care?


    Quality of care is great. If you can afford it. Otherwise you’re screwed.

    Affordability will never come with for-profit companies. It doesn’t pay for million dollar executive bonuses.


    Maybe not, but we gotta start somewhere.


    Volunteerism is great, but completely ineffective for large-scale problems. Never worked, never will.

    Slow down. Yes. Let’s slow down. We’ve only been studying this for 70 years, we shouldn’t be hasty.

    Responsibility a private company would [take]? HAHAHAHA… Oh, you were serious about that?

  17. Tim baggstrom

    -Name three cases you personally know (not media poster cases) where someone is traveling to another country to get equal treatment cheaper.
    -We agree quality of care is not an issue.
    -A million dollar executive salary and the business conscience that allows a leader to accept it are embarrasing. When our republic started our federal system was not alloted the power to regulate the price of a transaction between citizens.We have given this power to the federal government along the way. This has to be done carefully so as not to cripple the businesses ability to use profit to stay competitive and develop new or better products.This is a natural part of the free market.If the federal government is introduced into the market as nothing new,just another large insurance company with no profit margin to maintain it could upset the ability of other companies to remain competitve.
    -Any plan supported by 51% of us disregards 49% of our neighbors. A plan supported by 85% of us,even if it is small, is starting somewhere.
    -Please give me an example of a law allowing a state or municipality the ability to provide full insurance coverage to a citizen
    -volunteers-Cancer research-march of dimes-public broadcasting-blood banks-food banks-fire departments-neighborhood watchgroups-AIDs awareness-etc. (small problems)
    -There are 23 million businesses in America. Of the 5.7 million that have employess around 50 thousand have more than 500 employees. The rest (5.650.000 businesses)have less than 500 employees. These are the people whose responsibilty I admire.By the way, are you willing to support a law ,that may not be constitutional, that tells the 2.7 million small businesses with 1-4 employees that their HR department has failed and will have to find a way to offer health insurance or accept some type of tax penalty?

  18. LanceR, JSG

    Medical tourism has gotten so large that there is a whole industry that has grown around it. Travel agents, insurance companies, heck, India even built a big hospital complex specifically to cater to Western tourists coming in for cheap medical care.

    Believe it or not, it is often cheaper to fly overseas, stay in a hotel for a week, get surgery done, and fly home than it is to drive across town for the surgery. If you had bothered to read the links I provided, you would know that. Unless you’re just moving the goalposts.

    I really don’t understand your second paragraph. I’ve seen the argument before, but I don’t buy it. On the one hand, you cheerlead the free market, and how great and competitive it is. Then you turn around and whine that the poor insurance companies can’t compete with “teh great government plan”… which would suck because it’s “teh socializm”. Pick one.

    You need to do your own research. Try Massachusetts. And SCHIP. And Medicare/Medicaid. And the VA. And a thousand similar programs in many, many states.

    500 employees is an interesting dividing line for “small business”. Also, every plan I’ve seen has had exemptions for small businesses. Wouldn’t it be beneficial to be able to offer your employees a slightly better salary, since you don’t have to worry about healthcare benefits?

    Seriously. This is nothing more than ill-informed scaremongering. You may want to take a look at the “Denialists Cards” link at the top of this page. It will help you recognize this sort of garbage when you see it again.

    Some things to look into: recission, the current suit against Blue Cross/Blue Shield for “life endangering business practices”, medical tourism.

    Feel free to come back if you have any other questions.

  19. LanceR, JSG

    And referring to the “Any plan supported by 51% of us disregards 49% of our neighbors.” argument: (Links still broken)

    Two out of three ain’t bad. Pew research center

    3 out of 4 is getting pretty close to your 85% threshold. BTW, where is that 85% coming from? You do realize that 50% plus one is all that is really required, right? – Collation of polling on the public option

    A range from 41% on a harshly worded question, to a high of 83% for a questionable sample. If we eliminate the two outliers, we get a range from 65% to 76%.

    Apparently, the American people *want* a public option. Strongly.

  20. I have never read anything about medical tourism but I will make an effort to read something about it. I still try to make my decissions on my life and others I know in our small town in the South. when I contact my representatives or participate in a political activity my personal experiences are usually what motivate me. Thats why I say I don’t know anyone traveling for health care.
    Sorry I was not clear about free markets. I understand that there are many countries in the world with infamous elected officials called President or Prime Minister. Demoncracy and elected representatives do not guarantee an eviorment where families can flourish. Hisorically giving government some control of private property and bussiness does not seem to help that enviorment either. Free markets is a part of the imperitive checks and balances of power.
    -Thank you I will look into the Massachusetts health care system.
    -Medicaid I do have personal experience with. When I was much younger and thought starting a band was my number one priority I conceived my first child. We had her with wonderful care all thanks to Medicaid. I later had 2 more childeren on Mecicaid will making a modest living and paid not a dime. I later worked my way to an above average income but without health insurance. I was self motivated to stop taking the government money and moved to a job that paid $7/hr less to have health insurance. In doing that my daily expenses did not go down like my take home pay had so I put the rest on credit cards that I am still paying for. I am proud to say my take home income is finally higher than it ever has been and have paid for the birth of 3 more kids. The problem is-I PERSONALLY KNOW-many people who for years have used government services and make no effort to find a substitute.

  21. LanceR, JSG

    Ah, yes. The “welfare queen” gambit. I’m sorry, but I didn’t buy that when Reagan tried it, and I’m not buying it now. The whole “welfare to work” thing kinda put the lie to that notion.

    You may want to put some more thought into the “environment where families can flourish” notion. Historically, giving an elected government some control over private property and business is the *only* way families can flourish. Look into “company towns” and child labor. We have tried the whole laissez faire economy. All we got for it was child labor, robber barons, and company towns. “Sixteen Tons” by Tennessee Ernie Ford is a good example of this.

    There has never been a “free market” society. This is one of the myths of libertarianism. For a market to *exist* requires a framework for enforcement. Otherwise it degenerates into turf wars between opposing gangs. Call them syndicates, guilds, or city-states if you like, but gangs they are.

    If insurance companies have such a great product, and government health-care will suck so badly, what’s the problem? If insurance companies *can’t* compete with a government plan, doesn’t FreeMarketIsm(tm) require that they fail?

  22. LanceR, JSG



    (the three paragraphs I did read are full of mis/dis/false information)

    Shorter? Unfettered free markets will solve all our problems! It says so right here on the label!

    Short response: Horseshit.

  23. Shorter? Unfettered free markets will solve all our problems! It says so right here on the label!

    Oh come on, LanceR, that’s hardly fair. There’s also a lot of “socialism is EVIL!” in there.

  24. LanceR, JSG

    That’s true, Skemono, but I thought I should accentuate the positive.

    And he’s positive that FreeMarketIsm(tm) will solve all our problems.

  25. I’ll never understand why anyone thinks it is ok to make a business out of giving or refusing access to healthcare. Single payer is the only moral answer, the health insurance companies shouldn’t have been allowed to exist in the first place.

    And to all the Libertarians commenting, this is not 1700s Britian. Free Market Capitalism has shown again and again to be disasterous, and you live in a mixed economy and always will, so get over it.

  26. State and federal governments already control key aspects of health care. There cannot be much innovation in the format or delivery of health care under the fat, bloated fist of these government bureaucracies. The solution is *not* to shove the rest of the industry under that fist.

    Most people are happy with their health care. Their tax dollars should not be forcibly expropriated to pay for a government plan that will undercut their private plan.

  27. LanceR, JSG


    [citation needed] What “key aspects of health care” do you claim the state and federal governments control?

    Most people are emphatically *not* happy with their health care. Drop the “forcibly expropriated” bullshit and lets face facts. The “fat, bloated fist” we suffer under is the tyranny of corporations, specifically the lying, immoral insurance giants who hold a near monopoly on health care, and do anything to refuse to pay the claims they contracted to pay.

    That’s the issue at hand.

  28. Anonymous

    Chis H.,

    You’ve missed the greater point. The whole issue ISN’T about the constitutionality of healthcare. It’s about whether or not it’s constitutional to REQUIRE Americans to purchase health insurance.

    Were you blinded by your arrogance and disdain for those of us who have matured beyond the promises of false hope offered by the left?

    First of all, requiring Americans to purchase health insurance would be unconstitutional, expressed pehaps most poignantly by the Thirteenth amendment of the US Constitution, which clearly states that no citizen shally be pressed into involuntary servitude. Forcing American citizens to purchase health insurance (and the key word here is “purchase”) is a direct violation of the amendment.

    All right. Now I leave it to you to read and study the Tenth Amendment and perhaps the Ninth as well, and consider how out of line the leading Democrats are regarding this healthcare debacle.

  29. Kenit Barbano

    This puke “president” and his socialist bootlickers are on a fast track to turning this country into their own private money pit. They have a rude awakaning coming. There is going to be a revolution unlike any they have ever seen and the likes of the low life trash Pelosi, Reid, Obama and the rest of the socialist/communist swine are going to burn in hell.

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