By Susan Brinkmann, OCDS
Staff Journalist
A lawsuit challenging ObamaCare that is currently making its way through the Mississippi court system is the first suit to raise the same issue of privacy upon which Roe v. Wade is based as a reason why ObamaCare is unconstitutional. If the court decides against the premise posed in this suit, it could significantly weaken the ground upon which the infamous abortion case has been able to stand for so many years.
In an article appearing on Andrew Breitbart’s Big Government website, Mississippi trial lawyer K. Douglas Lee says his state’s suit is the only one that questions whether enforcement of ObamaCare violates the same “right to privacy” that was established in Roe v. Wade.
As Lee explains, the precedent for Roe’s right to privacy came from Griswold v. Connecticut in 1965, a case that dealt with marital privacy. In this case, the Supreme Court recognized that not all of the rights guaranteed by the Constitution are explicitly spelled out in the Bill of Rights, but that various guarantees in the Bill of Rights create “zones of privacy.
These “zones of privacy” are what led to the infamous Roe decision. Even though the Supreme Court found no “right to abortion” in the Constitution, it used Griswold to create a broad “zone of privacy” that included not only abortion but more generally the right to “care for one’s health and person.”
In Roe’s companion case, Doe v. Bolton, Justice Douglas stated in his concurring opinion: “It is one thing for a patient to agree that her physician may consult with another physician about her case. It is quite a different matter for the State compulsorily to impose on that physician-patient relationship another layer or, as in this case, still a third layer of physicians. The right of privacy – the right to care for one’s health and person and to seek out a physician of one’s own choice protected by the Fourteenth Amendment – becomes only a matter of theory, not a reality, when a ‘multiple physician approval’ system is mandated by the State.”
It’s not difficult to see how this “right to privacy” could apply to ObamaCare and its mandate that all must buy insurance, which would require disclosure of private medical information.
“Clearly, the PPACA (Patient Protection and Affordable Care Act) interferes with each person’s right to ‘care for one’s health and to seek out a physician of one’s own choice’ as each individual sees fit,” Lee writes.
“Notice also that Justice Douglas was not just concerned about privacy outside of the physician-patient arena (such as when insurance companies receive private medical information), he was concerned that the government not be allowed to impose additional physician-patient relationships on a person. In other words, even forcing a person to divulge private medical information to a doctor not of her own choosing was deemed untenable by Justice Douglas – to force a person to divulge private medical information to an insurance corporation certainly is even more untenable from a constitutional standpoint.”
In other words, Mississippi has a strong case and it is definitely one to watch, not only for its impact on the imposition of ObamaCare, but for the future of Roe v. Wade.
“The beauty of using Griswold, Roe and their progeny is that the courts will have to either agree that they encompass a broad right to medical privacy, or they will have to weaken the holdings upon which the ‘right’ to an abortion is founded,” Lee writes.
Even more intriguing is the fact that “ruling for us does not strengthen Roe,” Lee says, “but ruling against us will weaken it.”
The case is just beginning its travels through the court system. The government filed a motion with the federal court for the Southern District of Mississippi to dismiss the case, but Mississippi Lt. Governor Phil Bryant countered by filing a response on Nov. 15. Further action on the case is expected soon.
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