The “Right” to Healthcare v. the “Right” to Privacy

It seems like you can’t turn on the television or radio, open a newspaper or other print article, or search an online newspaper or blog without hearing someone arguing for so-called healthcare reform and justifying it by declaring that Americans have a “right to healthcare.” The terminology itself creates more problems than most want to admit. Parsing the language of this phrase leads to two separate, yet equally vital, issues. First, is there a “right” to health care? And, if so, what do the proponents of ObamaCare mean by “health care.” Second, if there is a right to health care, how does government involvement in the medical and insurance industries respect the “right” to privacy? And, if it does respect this right, does it ensure individual Americans freedom from federal intrusion into their lives?

Rights in the United States

We must begin our discussion by first looking to what the word “right” means within the context of our Constitutional framework and the intentions of our Founding Fathers. Rights emanate from Natural Law. This theory posits a proposition stated in the Declaration of Independence; that premise is “that all men are endowed by their Creator with certain unalienable rights.” This is a conviction upon which our government was based. Notice that there is no grant of these rights from one group of people to another or from a government to the populace. Since all men are born with certain rights, no law or government can contravene them. This is essential to understanding what it means to have a right to something in our nation.

Our Constitution originally did not contain any enumerated list of rights; it was initially crafted without any Amendments. Those who supported the Constitution in this format felt that rights did not need to be specifically itemized since the framework constructed by the drafters limited the powers of government to particular functions, and only those functions. However, a group of Founders, including James Madison and Thomas Jefferson, pushed for the inclusion of a list of basic liberties and refused to ratify the Constitution until they were included. This process is how we ended up with the first ten amendments, or, as they are commonly called, the Bill of Rights. This was not meant as an all inclusive catalog of rights, merely a documentation of the most vital and basic of them.[1]

We are all familiar with many, if not all, of these basic rights. They include freedom of speech, freedom to practice religion as one sees fit, freedom of the press, the right to own firearms, certain judicial system protections (due process, trial by jury, no double jeopardy), and the protection against unreasonable searches and seizures, to name but a few. This listing of primary liberties was intended to cover the most important rights granted to each man at birth.


Notice also what you don’t see. There is no right to breathe. There is no right to eat. There is no right to have access to clean drinking water. Does this exclusion mean that our Founders thought that the people did not have a right to these things? Of course not. These rights all existed at the time of our Founding; however, those who created our system of government did not specify them because they were the personal responsibility (or in the case of breathing, involuntary action) of those within society to care for themselves. It was never intended that our government provide them for us.

Again, this distinction matters. Our nation was founded upon the belief that government did not grant certain rights or provide rights to people. Rather, our government was limited from extinguishing those rights man already possessed.

Health care or Health Insurance & the Obama-Democrat Plan

Health care, via doctors, has existed for thousands of years. Our nation and the early settlers here had access to doctors and medical treatment. Yet, there is no mention of a right to health care in the Constitution or the Amendments to it. Nor will one find such an argument made by any of our Founding Fathers in public debate, speeches, or their writings. It is curious that the very men who created our nation failed to recognize what so many in today’s society clamor for as a right.

Further, our system of governance, even if it recognized such a right, would not be responsible for providing that right to the people. Our government is only set up to perform certain enumerated functions which promote a civil society, not to provide for every need or want of the public. We have a right to bear arms in this nation; however, our government does not hand out guns to those who want them (or to those whom the government thinks should possess them). We have a right to practice religion freely but the government does not give us houses of worship.[2]

I do not believe, nor does history suggest, that we have a right to health care in this nation. However, for argument’s sake, we will continue the debate under the assumption that such a right does, in fact, exist.

The next logical question then becomes: what exactly is health care? Health care can be defined as “the maintaining and restoration of health by the treatment and prevention of disease especially by trained and licensed professionals.”[3] In basic terms, this means treatment of an individual, whether curative or preventative, by a doctor.

If this definition is the standard, then our current medical system already meets this minimum hurdle. Any individual, citizen or not, who enters an emergency room must be cared for by the hospital staff. The hospital is not limited to only assisting those in dire situations. If an individual comes in for a minor illness or injury, the staff must still treat the patient. Additionally, there are free medical clinics in all 50 states and in nearly every mid-size city or larger (many cities have several of these clinics). The populace can utilize these institutions to remedy medical maladies and to attempt to prevent illness. The only requirements are that the individual travel to the clinic and then wait to see the physician or other medical provider, which, admittedly, may require considerable time spent in a waiting room.

Since our health care system currently provides access to doctors for all people, what then do the proponents of reform seek? Listening to the words chosen by advocates of change, it becomes clear that reformers want to see improved health insurance, or in most cases, health insurance for all people.

Health insurance is defined as “insurance against loss through illness or injury of the insured; especially insurance providing compensation for medical expenses.”[4] The arguments currently proffered tend to focus on the ability of Americans to pay for treatment given by physicians and their staff. Examples of citizens declaring bankruptcy is often cited or of people losing their homes in foreclosure because of burdensome medical bills. This problem is then clearly health insurance, since the focus is on the financial burden and not the access to medical care.

An overview of the plan(s) being presented and argued in both houses of Congress illustrates this point (you can read one of the many versions of the proposals here: http://energycommerce.house.gov/Press_111/20090714/aahca.pdf). One need go no further than the table of contents beginning on page 2 (of 1018) to find evidence of this. The list of titles and subtitles focuses almost exclusively on health insurance. Examples of the topics include “Protections and Standards for Qualified Health Benefits Plans,” “Health Insurance Exchange and Related Provisions,” and “Medicare and Medicaid Improvements.” Look closely at this list and it is obvious what the principal focus is. Additionally, this is relevant because no one is articulating a right to health insurance.

Those in favor of changing our system seek to alter the financial aspects of medical care, which is quite different than access to quality medical treatment. This is not meant to diminish their objective. I just feel that it is important to honestly frame the debate and the intentions of the legislators pushing the legal changes.

One last aspect of this proposed legislation that is important to discuss is how costs will allegedly be controlled. Specifically, the government will create oversight panels/boards that will review various treatments available in the marketplace.[5] These groups will attempt to determine which treatments are most cost-effective for large swaths of society. It will be their mandate to review procedures and medicines to determine which will be permitted.

Individual circumstances will not be considered because controlling costs on a macroeconomic level will take priority. President Obama even stated during his prime time press conference that “[people are] going to have to give up paying for things that don't make them healthier. ... If there's a blue pill and a red pill, and the blue pill is half the price of the red pill and works just as well, why not pay half for the thing that's going to make you well.” In other words, the government will decide which treatment it believes is best for you by computing the costs for treatment and the subsequent burden on the system as a whole.[6]

Right to Privacy

Government decisions dictating personal medical treatment raises the specter of potential conflicts with what we refer to as the right to privacy. To understand how this may occur, it is important to understand what exactly is meant by the right to privacy.


This right can not be found in the text of the Constitution, nor will it be found by perusing the Bill of Rights or any subsequent Amendments. In order to discover what this right entails, one must begin his review with the 1965 case of Griswold v. Connecticut.[7]

Connecticut had passed a law making use of any contraceptives a crime, regardless of who desired to use such means to prevent pregnancy. The State also made it criminal for any person to assist individuals, in any manner, in acquiring or using contraceptives. Once the law was enacted, a few doctors (including the Director of Planned Parenthood) were charged with assisting in the violation of this law by counseling married couples and were fined according to the criminal statute. The doctors appealed the decision up through multiple courts before finally ending at the Supreme Court of the United States.

The Supreme Court, in a split decision, decided that the Connecticut law was unconstitutional, voiding the law. The majority opinion was joined by three separate concurrences and opposed by two separate dissents.[8] What this ultimately means is that the outcome was at least partially controversial to those judges who determined the invalid nature of the Connecticut statute.

We do not need to explore all of the nuances of legal theory here. What is important is that the decision found that a right to privacy, although not found in the Constitution or Bill of Rights or any other Founding Documents, was nevertheless present as a fundamental principle of American liberty. The justification for this was that the “penumbras” and “emanations” of the Bill of Rights led to the conclusion that an implied right to privacy always existed. For example, the Court stated that since the 3rd Amendment prevented the government from forcing citizens to quarter soldiers in their homes, citizens must have a right to be secure in their home. Another example presented was the protection against unreasonable searches and seizures found in the text of the 4th Amendment. The Court felt that an implied right to privacy was present since the government was limited to searches based upon facts to support justification for the intrusion. Further examples were said to flow from the 1st, 5th, 9th, and 14th Amendments.

The dissent written by Justice Black strongly argued against this expansion of rights. His contention was that the absence of this “right” in the text of the Constitution and Bill of Rights meant that it did not exist. His fear, as expressed in his argument, was that an open reading of the Constitution would allow Judges to read their own opinions and views into the text.

Griswold as originally decided only applied to married couples. The right to privacy was extended to unmarried couples in Eisenstadt v. Baird in a 1972 Supreme Court case. The argument was that unmarried couples enjoyed the same Constitutional right to privacy as married couples; the legal reasoning remained unchanged for the most part.

The following year, 1973, the Supreme Court heard the case of Roe v. Wade. As this is one of the most famous and widely known legal decisions in U.S. history, the analysis can remain brief. A woman wanted to have an abortion but state law prohibited it. Individuals, on behalf of the impregnated woman, filed suit and appealed decisions all the way to the Supreme Court. What is essential to take away from this decision is that the Court again found that the right to privacy is a fundamental right and that the government must meet a high burden to infringe upon that right.[9][10] In essence, the lesson learned from this case was that women have decisional autonomy to determine whether to keep or abort a fetus after consulting with their physicians.[11]

The "right to choose" movement embraces this argument and uses it as the primary justification for their position. The social liberals who support the ability to seek and get an abortion claim that the government needs to keep its hands off their bodies. The claim focuses on the decisional authority of the individual without any imposition of government morality or interests. It is quite interesting that those same individuals now wholly support a health care overhaul that will do exactly what they argued against for the last three decades.

In summary, the Courts, not the Constitution or legislature, found that every American is born with a right to privacy. This right establishes that government can not interfere with matters quite personal to the individual without an extremely good reason for doing so. Citizens have the right to make most of their decisions without government prying or input.

How do you reconcile ObamaCare with a Right to Privacy?

Since we have an established, if not undisputed, right to privacy and we have supporters of President Obama’s changes to the medical industry claiming that health care is a right of all people, do we have a conflict between competing rights?

ObamaCare, as mentioned above, will oblige government officials to mandate treatment within the medical profession. The legislation is structured to cover the maximum number of individuals while, allegedly, reducing the costs of treatment. There are only a limited number of ways that this can be done, if it is possible at all. First, the government can limit the variety of treatments, drugs, and equipment available to patients to the least costly options. Second, the government can choose to ration care to patients. Third, the government can pressure the health care professionals to accept less payment for treatment.[12]

All of these options indicate that the government will interfere with the decisional autonomy of patients (i.e. their right to privacy). Roe v. Wade explicitly held that women alone have the right to choose medical procedures and courses of care based upon their own beliefs and assessments after consulting with medical professionals. The Democrat health care proposal, in turn, impairs the right to privacy that Americans possess. This occurs because government bureaucrats will determine your medical treatment, even if it is in direct opposition to the outcome you would choose after consulting with your doctor and your conscience. In order for the government plan to then succeed, the law in question must be for a compelling federal interest and must be narrowly construed to fit that interest in the least restrictive manner.

It is at least arguable that providing health insurance to all people is a compelling state interest. However, it must again be noted that prior to this date in history, no right to health insurance (or health care as the proponents argue) has ever been legally recognized. The federal government will likely meet this first prong of the test and articulate, to what will most likely be a friendly judiciary, the importance of extending health insurance coverage to more people.

The next prong of the test provides bigger problems, and potentially shows that the statute is unconstitutional. The government will have to demonstrate that the plan is narrowly tailored to the compelling interest and is the least restrictive means of achieving health insurance for all. It is not hard to imagine many other means of reaching the same goal with less intrusion into the private decisions of individuals. If a Court hearing such an argument were to place any weight upon alternatives, the legislation could find itself in jeopardy. Again, the current makeup of many Courts in this country leads to the conclusion that the Judges would possibly side with the government in favor of the legislation. However, strong Constitutional and moral arguments can be made against such an outcome and would likely incite the passions of the people in standing against such a plan.

A more basic comparison may be in order to accentuate the conflict between these claimed rights. In this country, we have a right to an open and free press. It was considered essential by our Founders that our media have access to stories deemed newsworthy and that journalists check the power of government on behalf of the populace. In today’s society, potential issues arise when this right of the press intersects with the right to privacy of the individual.

The media is permitted to photograph, ask questions, and even follow public figures when those individuals are in public places. The media is not permitted to perform those same tasks on private property. For example, a photographer from the National Enquirer can snap as many pictures of your favorite celebrity as he desires while that person is driving a car, eating at a restaurant, shopping in a boutique, or walking his dog. The cameraman may not snap pictures of the individual in his home. He may not enter the home and place video cameras in bedrooms. The photographer may not violate the individual's right to privacy.[13]

Analysis leads us to the proposition that one right of the citizens may not infringe upon another right without clearing a very high hurdle. It seems unlikely, based upon the facts at hand, that the government can meet this hurdle with health care reform. This so-called health care plan is furthered weakened when you realize that there is no right to health care in this country. It is battered even more once it becomes clear that the legislation is not about health care; it is about financial coverage of health care, and therefore concerns health insurance. The deduction made is that a select few in this country are pushing an insincere play on vocabulary in an attempt to pass legislation that infringes upon a (judicially created) fundamental right to privacy. The end result is an unconstitutional usurpation of power that weakens our Constitutional protections and allows the federal government to begin making medical decisions for us. Once the government opens this door and violates a fundamental right, the chances of preventing subsequent erosion lessen and freedom is placed in an ever more precarious position.

[1] The 9th Amendment (which states “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people[.]”) was added to the list to ensure that no future government could limit rights only to those clearly spelled out in the Bill of Rights.
[2] Admittedly, our government may provide tax exemption or subsidies to these organizations. It must be stated that this is to promote a certain level of morality within our society (which religion provides) and not to fully fund, support, or promote these religious institutions.
[3] This definition is courtesy of Merriam-Webster's Medical Dictionary, © 2002.
[4] This definition is courtesy of Merriam-Webster's Dictionary of Law, © 1996.
[5] Page 30, Section 123 of the bill previously linked in this article (http://energycommerce.house.gov/Press_111/20090714/aahca.pdf) establishes a committee “to recommend covered benefits and essential, enhanced, and premium plans.” (See also, page 42, Section 142).
[6] Page 29, which is part of Section 122’s discussion on essential benefits, discusses limitations on care for individuals and families so as to not overwhelm the system.
[7] You can learn more about this Supreme Court decision by following this link (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZO.html) to the Cornell Law school collection of landmark legal cases.
[8] A concurrence in a legal decision means that the author of the “concurring opinion” agrees with the outcome of the case but takes a different view on how to get to the conclusion. Sometimes these differences attempt to limit the majority decision, sometimes they seek to expand it, and sometimes it serves only to clarify points of law. A dissent is an opinion by a Justice (or Justices) who oppose the majority decision. The dissent is his chance to explain why he thinks the Court is wrong and to present his case to the legal community.
[9] When dealing with fundamental rights, the Court utilizes a standard of review called strict scrutiny. This means that the government, in creating laws conflicting with rights, must have a compelling interest and narrowly tailor the law to the compelling interest in the least restrictive possible manner.
[10] The legal analysis used in this case is still debated today and gets into obscure arguments not necessary for this writing.
[11] Subsequent to Roe, the Supreme Court has heard cases clarifying, and in some cases, expanding, the right to privacy. Planned Parenthood v. Casey (1992) slightly altered the legal analysis but kept in place the fundamental right to privacy. Other cases are included in this line of argument dealing with privacy and due process under the 14th Amendment.
[12] This option has the perverse effects of shifting the costs to those privately insured and of decreasing the incentives for individuals to work in the health care industry. When doctors have to accept less from a public plan, they increase costs to those privately insured to make up the difference. This means that some people pay for their own insurance plan and the public plan. It further creates the potential for even more severe doctor and nurse shortages than we currently have because the financial rewards for the profession decrease.
[13] I understand that the press is not a government actor but the analysis of how rights conflict still holds value as an example.