The Good, the Bad, and the Ugly: How the Due Process Clause May Limit Comprehensive Health Care Reform
Singleton, J. Paul, Issues in Law & Medicine
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.
Dissatisfaction with the American health care system is widespread and growing.1 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.5 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.
The United States is the only industrialized nation that does not guarantee health care to its citizens.10 As briefly discussed above, fewer and fewer Americans have access to health insurance and therefore cannot afford adequate medical care. The U.S. Census Bureau reports that the number of uninsured Americans reached over forty-six million in 2005, with 15.9% of the population lacking health coverage.11 In addition to the uninsured, twenty-five million more are underinsured.12
The abundant lack of health care insurance coverage creates significant difficulties for both insured and uninsured American families. Uninsured Americans are more likely to postpone medical visits,13 and "[p]ersons that delay or fail to receive timely health care are more likely to develop serious illness, become hospitalized for conditions that could have been avoided, and ultimately die."14 Under almost any measure of quality, American health care falls well below international standards.15
The uninsured, however, are not the only ones to be adversely effected by the lack of health insurance coverage. Every year, the uninsured receive an estimated $56 billion in uncompensated care, and those costs are shifted to insureds through higher health care costs and increased insurance premiums.16 In fact, between 2000 and 2005, group health insurance premiums increased nearly 100%, from $6,722 to $io,728.17 Consequently, even the insured are foregoing needed medical care because of the inability to pay co-payments and deductibles.18 As rising costs force many Americans to forgo medical insurance, health care providers are presented with even more uncompensated care, which is then shifted back to the remaining insured- only exacerbating the problem and forcing others to drop coverage.19
The rapidly increasing cost of health care also places significant burdens on American private enterprises. Between 1993 and 2004, health care costs doubled.20 Domestic businesses are negatively impacted because they are forced to absorb rising health care costs while trying to stay competitive at home and in the emerging global economy. For example, in 2007, health care costs constituted $1,525 of the price of every General Motors vehicle.21 To put that figure in context, GM spent $4.6 billion on health care in 2007, an amount greater than what the company spent on the steel used to produce its automobiles.22 This huge annual expenditure for medical care "puts the company at a $5 billion disadvantage against Toyota, which spends $1,400 less on health care per vehicle."23 It is no surprise that the "percentage of employers providing insurance to their employees has dropped from nearly 70 percent to 60 percent."24
These increasing costs also place great strain on the nation's economy. Failure of the uninsured to obtain necessary preventive care leads to decreased workplace productivity as well as an increased risk of illness and death, resulting in costs of $65 to $135 billion per year.25 In 2008, the projected total health care spending in the United States was $2.4 trillion, or $7,900 per person.26 Currently, health care costs the United States government between two to three times more per capita than other industrialized nations.27 If left unfettered, the Congressional Budget Office estimates that by 2025, one-fourth of the national budget will be allocated to health care funding28- a percentage that will certainly limit the government's future ability to provide other necessary services, such as funding infrastructure projects or military defense.
As noted above, inflated health care costs are only rising, thereby decreasing the competitiveness of domestic companies as long as this issue remains unaddressed. Clearly, the problems associated with health care accessibility and rising costs are of grave concern. As lawmakers demand change, it appears that some sort of government intervention is inevitable. If government reform is undertaken, however, the dichotomy between increasing access and controlling costs will undoubtedly lead to fears of rationing health care services.29 In light of these fears, the question becomes: Does the Due Process Clause of the Fifth or Fourteenth Amendment protect one's right to make decisions regarding personal health care and, if so, would a rationed health care system infringe on that constitutionally protected interest?
The remainder of this comment will discuss the proposition that, based on the same constitutional protections underlying landmark Supreme Court decisions such as Roe v. Wade, Griswold v. Connecticut, and Cruzan v. Director, Missouri Department of Health, a multi-payer health care system that restricts an individual's right to make personal health care decisions may violate those "liberty" interests protected under the Constitution's Due Process Clauses. As a result, Congress must be vigilant to ensure that these liberty interests are protected when enacting a comprehensive health care overhaul.
II. Constitutional Restrictions on Health Care Regulation
A. Brief History on Constitutionally Protected Rights
Generally speaking, the United States Constitution affords very few protections for individual liberties. Although the Declaration of Independence proclaimed that all persons have the "unalienable" rights of "Life, Liberty and the pursuit of Happiness,"30 the Declaration neither guarantees these rights nor provides substantive protections for them.31 Any and all protections must originate in the U.S. Constitution.
In its original form, the Constitution established a structural framework of the United States government.32 In other words, prior to the adoption of the Bill of Rights, the Constitution did not provide a charter of fundamental rights.33 The few individual rights outlined in the original document consisted of the right to a jury trial, the writ of habeas corpus, protection for contracts, and protection against ex post facto laws.34 On one hand, the omission of individual safeguards may be attributed to the belief that a federalist system of government, designed to restrict concentrated authority, would adequately protect the rights and liberties of its citizens.35 Another theory is that the omission may be attributed to the fact that, at the time of drafting, state constitutions already provided adequate safeguards for individual rights and liberties.36 Furthermore, the framers may have believed that an incomplete enumeration of individual rights would hamper protection of any unenumerated rights.37 This concept is illustrated in the text of the Ninth Amendment, which states that any enumeration of rights in the Constitution "shall not be construed to deny or disparage others retained by the people."38
Nevertheless, states soon became concerned with the omission of adequate protections for individual rights and liberties.39 Prompted by these concerns, James Madison drafted the first ten amendments to the Constitution, which were ratified by the states in 1791.40 These ten amendments later became known collectively as the "Bill of Rights" and provided for, among other things, the freedom of religion, speech, and press; peaceful assembly; the right to petition for grievances; the right to bear arms; the right to deny soldiers quarter in one's home; and the right to be free from unreasonable searches and seizures.41 The Bill of Rights, however, only protected citizens from actions of the federal government, not from actions of the states.42 Following the Civil War, several additional protections were added to the Constitution with the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments.43 These amendments specifically applied to the states, and established protections against slavery,44 ensured that all citizens would be treated equally, and guaranteed that no citizen could be deprived of life, liberty, or property without due process of law.
B. Emergence of Substantive Due Process
One of the most notable provisions of the Fourteenth Amendment is the "Due Process Clause."46 Like the Fifth Amendment's Due Process Clause, which applies to the federal government, the Fourteenth Amendment commands that no state shall "deprive any person of life, liberty, or property, without due process of law."47 On its face, this relatively benign phrase provides merely procedural protections against government infringement on a person's "life, liberty, or property"- hence the phrase "without due process of law"- but does not provide significant substantive protections of individual rights and liberties.48 Consequently, the Due Process Clause did little to provide extensive safeguards for fundamental rights until the early 1900s when the Supreme Court greatly expanded the provision's protections by interpreting implicit fundamental rights within its parameters.49
In Lochner v. New York, the Supreme Court held that a New York law setting labor standards for bakers was unconstitutional because it was an infringement of personal liberty under the Due Process Clause of the Fourteenth Amendment.50 According to the Court, the New York labor law infringed on an individual's "liberty" interest in the freedom to contract.51 In reaching its decision, the majority noted that the Constitution encompassed protections beyond those specifically enumerated in the Bill of Rights.52 The Due Process Clause of the Fourteenth Amendment recognized "fundamental rights protected by natural law and social compact in addition to those rights listed in the Bill of Rights."53
While subsequent political pressure ultimately led the Court to abandon the notion of freedom to contract as a fundamental right protected under the Due Process Clause, the demise of Lochner did not prevent the Court's acceptance of other unenumerated constitutional rights.54 Since Lochner, the Court has held that the Constitution implicitly defines a right to, among other things, have an abortion,55 use contraception,56 marry,57 procreate,58 have family relationships,59 control the education of one's children,60 and maintain bodily integrity.61 These examples illustrate the broad scope of unenumerated rights acknowledged by the Supreme Court. Although a uniform standard for identifying implicit Constitutional rights has never been expressly agreed upon by the Court, it has made clear that a fundamental right exists when it is either "explicitly or implicitly guaranteed by the Constitution."62 Under this framework, we must examine the right of an individual to have personal control over his or her medical treatment, and how Congress must be wary to not infringe on these rights when drafting the current health care proposals.
C. Right to Individual Choice Regarding Medical Treatment
As discussed in the preceding section, the Supreme Court has recognized various rights not enumerated in the Constitution and has used those rights to strike down laws infringing on personal conduct. These judicially created rights were extended to afford individuals protection against unwarranted government interference with freedom of choice regarding certain personal decisions such as the decision to use contraceptives,63 to have an abortion,64 and to maintain one's own bodily integrity.65 Accordingly, these personal decisions provide a framework that prohibits government intrusion with certain constitutionally protected right s- often referred to as a general right to privacy- except in the most extreme circumstances.
For example, in Griswold v. Connecticut, the Supreme Court invalidated a law that prohibited the sale and use of contraceptives.66 Justice Douglas, writing for the majority, stated that a general right to privacy could be inferred from the explicit protections delineated in the Bill of Rights.67 Following a thorough examination of the Court's post-Loc/iner jurisprudence, it was found that through the explicit protections of the Bill of Rights, "[v]arious guarantees create zones of privacy. . . . These cases bear witness that the right of privacy which presses for recognition here is a legitimate one."68 The Court found that the state law's prohibition of contraceptive use infringed upon a married couple's right of privacy.69 The ban on the use of contraceptives was not necessary to further Connecticut's alleged interest in preserving marital fidelity because the statute "reach [ed] far beyond the evil sought to be dealt with and [was] intruding upon the privacy of all married couples."70
Later, in Eisenstadt v. Baird, the Supreme Court extended the Griswold holding beyond the context of married couples to include a right of privacy for all individuals.71 In Eisenstadt, a state statute prohibiting the distribution of contraceptives to unmarried individuals was declared unconstitutional.72 The Court held that the right of privacy protected under the Fourteenth Amendment's Due Process Clause protected against "intrusion into matters so fundamentally affecting a person [such] as the decision whether to bear or beget a child."73 According to the Court, this right extends to "the individual, married or single."74
One of the most important cases thus far concerning a right to make personal decisions regarding health care is Roe v. Wade, where the Supreme Court declared unconstitutional a state law that prohibited abortions under all circumstances except those necessary to save the life of the mother.75 The Court examined prior decisions and expressly held that a right of privacy exists within the Due Process Clause of the Constitution,76 and is broad enough to include an individual's right to make the medical decision of whether or not to terminate a pregnancy.77 After concluding that this right exists, the Court went on to explain that the state had an important interest in "safeguarding health, in maintaining medical standards, and in protecting potential life."78 Nevertheless, the Court held that the law prohibiting abortion was not necessary to further those state interests and ultimately struck down the Texas statute.79
The analogy between abortion and an individual's right to control personal medical treatment is striking. Generally speaking, abortion is simply a medical treatment desired by an expectant mother. As stated in Planned Parenthood of Southeastern Pennsylvania v. Casey,
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. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and the mystery of human life.80
Certainly, it is difficult to imagine choices more "central to personal dignity and autonomy" affecting "his own, or his family's, destiny"81 than measures taken for the prevention and treatment of disease, as these actions may be essential to preserving or extending life itself. In fact, according to the concurring opinion, the right recognized in Roe was not simply the right to an abortion, it was "the affirmative right to obtain medical intervention."82
The sentiment proffered in Casey was supported in Cruzan v. Director, Missouri Department of Health, where the Supreme Court extended the constitutionally protected zone of privacy to encompass an individual's personal control of his or her medical treatment.83 In Cruzan, a patient's family sought to end their relative's life by terminating food and water after learning of the improbability that she would emerge from her vegetative state following a serious automobile accident.84 The hospital refused to terminate medical care without court approval, and the family brought suit.85 While the Court sided with the state and held that the family could not terminate their relative's medical care,86 it made several significant holdings. Most notably, the Court stated that a competent adult "has a constitutionally protected liberty interest in refusing unwanted medical treatment."87
Eight of the nine justices- all but Justice Scalia- recognized the interest or right established in Cruzan.88 Chief Justice Rehnquist, in his opinion for the Court, went on to note that a liberty interest in refusing unwanted medical treatment was so strong