By Susan Brinkmann, OCDS
Staff Writer

Two prominent lawyers are saying the same “right to privacy” arguments used in the infamous Roe v. Wade decision could be used to challenge individual decisions made by the government under its proposed new health care system.

According to an opinion piece appearing in the Wall Street Journal, David Ridkin and Lee Casey, two lawyers who worked in the George H. W. Bush administration, say there could be constitutional ramifications if the government attempts to play some sort of role in determining medical treatments for individual Americans.

For instance, the court explained in Planned Parenthood v. Casey (1992): “ . . . 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.”

Rivkin and Casey write:

“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. . . .

“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?”

What this means is a potential lawsuit every time the government declines a procedure, which it will be empowered to do under its proposed new health care program.

“It is, of course, impossible to predict how and when the courts will ultimately rule on the new health system, Rifkin and Casey write. “. . . In crafting the law, however, its White House and congressional sponsors must keep privacy — that near absolute right to personal autonomy they have so often praised and promoted — squarely before them.”

They conclude: “The only thing that is certain today is that the courts, and not Congress, will have the last word.”

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