The Good, the Bad, and the Ugly: How the Due Process Clause May Limit Comprehensive Health Care Reform

Article excerpt

ABSTRACT: This article examines a topic which has received little attention from the media or other scholarly publications: The due process concerns that arise when engaging in comprehensive federal health care reform and regulation. First, the article provides a background discussion detailing the factors necessitating health care reform in the United States. Second, it analyzes whether a constitutionally protected right to make personal health care decisions exists under the Fifth and Fourteenth Amendments' Due Process Clauses. Finally, the article analyzes the susceptibility of government-sponsored health care--specifically proposals which include a public option--to due process challenges and makes suggestions to avoid any potential fundamental rights violations.

I. Introduction

Dissatisfaction with the American health care system is widespread and growing? Health care costs are rapidly on the rise, dramatically reducing the spending power of families, private and public companies, and the United States government. Due to these rising costs, an increasing number of Americans are finding themselves uninsured. Ironically, as the number of uninsured increases, so does the cost of health care as providers seek to shift costs of treating the uninsured to the insured. (2) Together, rising costs and decreasing accessibility create a perpetual cycle that is quickly accelerating. This problem has caused both American citizens and American businesses to carry the burden of absorbing mounting health care costs while trying to remain competitive in a global marketplace.

With these problems weighing on the American population, it is difficult to seriously contend that the health care system does not need an overhaul. According to Federal Reserve Chair, Ben Bernanke, "[i]mproving the performance of our health care system is without a doubt one of the most important challenges that our nation faces." (3) While there may be a consensus that change is needed, (4) widespread disagreement exists about the avenue for realizing that change? In fact, government health care reform has been attempted, and failed, "regularly since the presidential incumbencies of Presidents Roosevelt, Truman, and Clinton." (6) One major obstacle facing lawmakers seeking to repair the current health care model is that, economically speaking, addressing the problems of accessibility inevitably leads to either higher costs or decreasing quality. Conversely, reducing costs without reducing accessibility theoretically requires a reduction in quality or some other form of rationing. (7) This catch-22 has created a dichotomy as to the best means to achieve an acceptable solution.

As of the date of this comment, Congress has suggested and voted on several health care reform bills. (8) Each of these proposals seek to embark on the monumental but necessary task of expanding coverage to more citizens while also reining in health care's rising costs. (9) This comment, however, is not intended to be an exhaustive exploration of every health care issue that needs to be addressed when overhauling the current system. In fact, such an examination would be largely superfluous considering the abundance of media coverage already directed at the topic. Nor is the purpose of this comment to examine and analyze the effectiveness of the various proposals currently before Congress. Rather, this comment will examine a topic which has, to date, received little attention from the media or other scholarly publications: The due process concerns that arise when engaging in comprehensive federal health care reform and regulation. First, this comment will provide a background discussion detailing the factors necessitating health care reform in the United States. Second, this comment will analyze whether a constitutionally protected right to make personal health care decisions exists under the Fifth and Fourteenth Amendments' Due Process Clauses. Finally, this comment will analyze the susceptibility of government-sponsored health care--specifically proposals which include a public option--to due process challenges and make suggestions to avoid any potential fundamental rights violations. …