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

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.






Latest articles from "Issues in Law & Medicine":

Preface (April 1, 2012)

Other People's Lives: Reflections on Medicine, Ethics, and Euthanasia (April 1, 2012)

The Legal Status of Abortion in the States if Roe v. Wade is Overruled (April 1, 2012)

The Devil is in the Details: Managed Care And the Unforeseen Costs Of Utilization Review as a Cost Containment Mechanism (July 1, 2011)

Preface (July 1, 2011)

Other People's Lives: Reflections on Medicine, Ethics, and Euthanasia (July 1, 2011)

Gary Blick v. Division of Criminal Justice* (July 1, 2011)

Other interesting articles:

MINIMAL ETHICS AND THE NEW CONFIGURATION OF THE PUBLIC SPACE
Journal for the Study of Religions and Ideologies (July 1, 2012)

DOES THE CONSTITUTION PROTECT ECONOMIC LIBERTY?
Harvard Journal of Law and Public Policy (January 1, 2012)

AMERICAN JUSTICE
Amass (January 1, 2012)

NATURAL LAW AND THE UNITED STATES CONSTITUTION
The Review of Metaphysics (September 1, 2012)

THE SCOPE OF GOVERNMENT IN A FREE SOCIETY
Cato Journal (October 1, 2012)

LETTERS TO THE EDITOR
The New American (April 9, 2012)

THERE'S A GUN TO YOUR HEAD: WHO'S GOING TO BE ELECTED MAYOR IN 2013?
The Stranger (November 9, 2011)

Publication: Issues in Law & Medicine
Author: Singleton, J Paul
Date published: April 1, 2011

I. Introduction

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.

A. Background

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 it would be recognized even if it would result in death.89 Additionally, the Court held that any right to make personal medical decisions belongs to the individual, and, therefore, a state may prevent someone else from acting on the individual's behalf.90 Finally, the Constitution "protects an interest in life as well as an interest in refusing life-sustaining medical treatment."91 After weighing the state interest in the preservation of life against the personal liberty interest of refusing unwanted medical treatment, the Court concluded that the law requiring clear and convincing evidence of a patient's desire to end life-saving treatment before termination was permitted under the Due Process Clause.92

Justice O'Connor's concurring opinion in Cruzan noted that personal control over important medical decisions is a "deeply personal decision."93 The Court has also recognized

[T]he individual's right to make certain unusually important decisions that will affect his own, or his family's, destiny. The Court has referred to such decisions as implicating "basic values," as being "fundamental," and as being dignified by history and tradition. The character of the Court's language in these cases brings to mind the origins of the American heritage of freedom- the abiding interest in individual liberty that makes certain state intrusions on the citizen's right to decide how he will live his own life intolerable.94

Surely, controlling one's decision regarding personal medical care is included in the category of "important decisions that will affect [one's] own, or [one's] family's, destiny."95 In fact, Justice Souter's concurrence explicitly characterized the holding in Cruzan as establishing a fundamental right to "personal control of medical treatment."96 Without a doubt, a very strong argument exists that personal control over important medical decisions is at the heart of the liberty interests protected under the Due Process Clauses of the Fifth and Fourteenth Amendments.

It is important to note, however, that Cruzan did not stand for the proposition that a person has a constitutionally protected interest in exercising control over all medical decisions regardless of the circumstances. In Washington v. Glucksberg, the Court upheld a Washington law prohibiting physician-assisted suicide.97 In reaching this decision, the Court rejected claims that the law violated a fundamental right protected under the Due Process Clause.98 The majority reasoned that a right not explicit in the Constitution will only be protected as fundamental under the Due Process Clause when supported by history or tradition.99 The Court pointed out that "for over 700 years, the Anglo-American common law tradition has punished or otherwise disapproved of both suicide and assisting suicide."100 Further, "[i]n almost every State- indeed, in almost every western democracy- it is a crime to assist a suicide."101 Based on the foregoing, the Court concluded that neither history nor tradition supported the protection of an individual's right to commit or have someone assist in committing suicide.102 Thus, the Court upheld the Washington statute after concluding it was reasonably related to the legitimate government objective of preserving life, protecting the integrity and ethics of the medical profession, protecting vulnerable groups, and stopping the path to involuntary suicide.103

Several circuits have also weighed the state interest of saving life and held that the Due Process Clause does not encompass a fundamental right to, among other things, access non-FDA approved medications.104 For example, inMitchellv. Clayton, the Seventh Circuit held that patients do not have a constitutional right to obtain specific treatment.105 Similarly, in United States v. Burzynski Cancer Research Institute, the Fifth Circuit held that terminally ill patients had no constitutional right to receive particular medical treatment.106 And, in Carnohan v. United States, the Ninth Circuit held that the right of privacy and personal liberty did not encompass a right to obtain a non-FDA approved drug, free of government regulation.107

Most recently, in Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, the D.C. Circuit adopted a similar view.108 The Circuit Court refused to recognize a new constitutional right for dying patients to have access to experimental drugs not yet cleared for general public use.109 Examining past legislation, the court found a long tradition of state and federal government drug-safety regulation.110 Thus, the D.C. Circuit concluded that no fundamental right existed for the terminally ill to access non-FDA approved drugs.111 As a result, the court applied only a rational basis review112 and, indeed, found that the FDA's interest in protecting patients from unsafe drugs bore a rational relationship to the challenged regulations.113 Accordingly, the court affirmed the district court's grant of the FDA's motion to dismiss.114

Despite certain circuit dialogue, the Supreme Court has yet to expressly hold whether the Due Process Clause includes a right to be treated with experimental drugs not yet approved by the Food and Drug Administration. In fact, the Supreme Court recently denied certiorari for Abigail Alliance and, without comment or recorded dissent, let the D.C. Circuit ruling stand.115 The Court has made clear in prior rulings, however, that the right to personal control over medical treatment may have limits in extreme circumstances.116

Read together, the preceding cases support an individual's right to personal control of medical treatment that must remain free of government regulation, except in the most extraordinary circumstances. Moreover, the cases rejecting a right to make certain medical decisions- assisted suicide and access to non-FDA approved medications- do not absolve the constitutionally protected right of personal control over medical decisions that do not jeopardize personal safety. The distinction between those rights that are protected under the Constitution and those that are not has clearly hinged on the history and tradition of preservation of human life.

While it is hard to deny that assisted suicide and other forms of bodily harm have a history of proscription, a search of American health care law uncovers little evidence of laws prohibiting competent adults from rendering their own medical decisions. To the contrary, history suggests that even in some of the most extreme circumstances a similar right has traditionally been protected.117 For example, in Washington v. Harper, a mentally ill prisoner filed suit challenging the involuntary administration of antipsychotic drugs.118 According to the Court, prisoners have "a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment."119 Nevertheless, because all constitutional claims regarding the validity of prison regulations are evaluated based upon a mere rationality standard rather than the strict scrutiny required of typical impositions on fundamental rights, the Court held that the regulation was reasonably related to the legitimate state interest of "combating the danger posed by a person to both himself and others."120 Together, with the similar protections recognized in Cruzan and Roe, it appears that an individual's ability to make medical decisions is protected by the Supreme Court, and thus, the Constitution.

With a history of protection, rather than proscription, the rationale for rejecting a fundamental right to physician-assisted suicide in Glucksberg is not applicable to general everyday decisions that do not diverge from the state's interest in the preservation of life. Accordingly, current precedent suggests that the Supreme Court would uphold an individual's general right to personal control over medical treatment. Consequently, the government has a duty not to infringe upon, or unduly burden, that right.

D. Application of Fundamental Rights to Health Care Reform

Assuming the Supreme Court would acknowledge an individual's right to control his or her medical treatment, the next question is: Are there any due process concerns implicated by comprehensive government reform that creates a public option to compete with private insurers? As discussed below, two requirements must be met for government health care reform to infringe on an individual's right to make personal medical decisions. First, because there is generally no affirmative right to government services, the government must monopolize the field as health care payer, thereby eradicating all other private health care options. Second, the government must institute some form of rationing or other limitation on the right to make personal medical decisions, thereby infringing on a constitutionally protected right. If either one of these requirements is not satisfied, the Due Process Clauses likely could not be asserted to impose a constitutional barrier to federal health care reform.

1. Government Monopolization as Health Care Provider

Generally speaking, the United States Constitution does not establish an affirmative right to government services or require the federal government to make them readily available to citizens. One reason for the absence of this right is that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors."121 Instead, the Due Process Clauses have been interpreted merely as a "limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security."122 In other words, the constitutional guarantee under the Due Process Clause- whether under the Fifth or Fourteenth Amendment- simply ensures that an individual is free from government intrusion into certain protected liberty interests.

Clearly, the failure of the federal government to provide access to certain liberties does not infringe on a fundamental right because it does not impede an individual's exercise of his or her respective right. For example, refusal to provide financial assistance for abortions does not infringe on a citizen's fundamental right to make personal choices regarding abortions because the government has not precluded the exercise ofthat right because other non-government options are available.123 In Harris v. McRae, the Supreme Court stated that the Fourteenth Amendment "does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom."124 According to the Court, the financial condition of an individual is not created by the government and cannot be considered an obstacle to freedom of choice,125 and "[w]hether freedom of choice that is constitutionally protected warrants federal subsidization is a question for Congress to answer, not a matter of constitutional entitlement."126

Nevertheless, the Court has repeatedly distinguished cases where government action has restricted the exercise of fundamental rights by creating a government monopoly on the access to constitutionally protected freedoms. In those cases, the Court has held that the government's duty to provide services does exist because, if the government did not provide access to those fundamental rights while simultaneously acting as the sole provider, citizens would have no means by which to exercise their constitutionally guaranteed liberties.

In 1976, the Supreme Court addressed the issue of prisoners' health care in Estelle v. Gamble.127 The Court held that under certain circumstances, it was cruel and unusual punishment for a prison to refuse to provide medical treatment after an inmate had injured his back.128 The government has an "obligation to provide medical care for those whom it is punishing by incarceration,"129 and because the prisoner "cannot by reason of the deprivation of his liberty, care for himself," it is only "just" that the State be required to care for him.130 A prisoner has no choice but to rely on the government to provide needed medical care.131 If the government fails to do so, the inmate's medical needs will not be met and in "the worst cases, such a failure may actually produce physical 'torture or a lingering death.'"132 The Estelle Court noted that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain.'"133 Hence, the Eighth Amendment's prohibition against cruel and unusual punishment, made applicable to the States through the Fourteenth Amendment's Due Process Clause, requires the State to provide adequate medical care to incarcerated individuals.134

In Youngberg v. Romeo, the Court extended this analysis beyond the Eighth Amendment setting by considering the rights of a mentally disabled person who was confined in a state institution.135 The Court held that the Fourteenth Amendment's Due Process Clause requires a state to provide involuntarily committed mental patients with services as are necessary to ensure their "reasonable safety" from themselves and others.136 It expressed the distinction between an affirmative duty to provide everyday services and an affirmative duty where government intervention suppressed an individual's freedom to exercise their liberty.137 Generally, a State is under no constitutional duty to provide substantive services to its citizens; however, when a person is institutionalized and wholly dependent on the State a duty to provide certain services and care is initiated.138 The government has a duty to provide adequate food, shelter, clothing, and medical care because the committed enjoy constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as maybe required by these interests."139 Ultimately, " [i] fit is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional [under the Due Process Clause] to confine the involuntarily committed- who may not be punished at all- in unsafe conditions."140

Similarly, in DeShaney v. Winnebago County Department of Social Services, the Court recognized that the government has a duty to provide services in extraordinary circumstances, such as when the government monopolizes the means for a person to exercise a constitutionally protected right.141 In DeShaney, the Supreme Court first noted that "our cases have recognized that the Due Process Clauses generally confer no affirmative right to government aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual."142 Thus, under due process, the Constitution imposes no obligation on the States to pay any medical expenses, let alone the costs associated with the health care of the indigent. However, the DeShaney Court recognized that the government has a duty to provide services in extraordinary circumstances. For example, when a person is in government custody or when the government itself creates a danger, a duty to provide services is triggered. The majority noted that "when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to [exercise his fundamental rights], and at the same time fails to provide for his basic human needs," an individual's due process rights are violated.143

Finally, in Boddie v. Connecticut, the Court invalidated under the Due Process Clause "certain state procedures for the commencement of litigation, including requirements for payment of court fees and costs for service of process" that restricted the ability of indigent persons to bring an action for divorce.144 The Court noted that prior decisions, most notably recognizing the right to marry, established that marriage involves "interests of basic importance in our society."145 As such, it concluded that the right to make individual decisions regarding marriage, including those decisions to terminate marriage, was a constitutionally protected interest under the Due Process Clause of the Fourteenth Amendment.146 The Court stated that special concerns arise due to the state's monopolization of the avenues for legal dissolution of the marital relationship.147 Hence, a "State may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, preempt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so."148 It appears that the Supreme Court has found that while the government generally has no duty to do more than refrain from infringing on constitutionally protected liberties, government monopolization of a person's access to a particular liberty may invoke a broader obligation.

In the context of health care reform, the ultimate solutions to the problems of accessibility and affordability have yet to be determined. Currently, several plans have been introduced in the House and Senate.149 Somewhere between a completely government-funded- or single-payersystem and a solely private-funded system is where various legislative plans have emerged to address the problems facing the nation's health care.150 One proposal recently passed in the House of Representatives would create a multi-payer health care system, where the government essentially subsidizes health care costs for all participants through a "public option," while also permitting consumers to fund their own health care through private insurance or by any other means they prefer.151 The public option is designed to compete with private insurers in an effort to bring down the cost of private health care coverage.152 This "multi-payer" system is appealing because it is structured so that people will not have to worry about being "uninsured," regardless of employment, age, socioeconomic status, or health.153 Patients opting for the publicly-funded plan would not be restricted in choosing their doctor, and physicians would be free to select the appropriate course of treatment.154 The plan also ensures that if a citizen is discontent with the public option, or desires not to enroll, there will be somewhere to turn- the private market.155

In a multi-payer system, the existence of private options seems to preclude a finding of an affirmative duty to provide medical care, and thus, no constitutional infringement could exist by failing to assure access to all liberty interests. If the government enacted a public option that limited payments for only certain medical treatments or procedures, citizens would still have private options available for funding treatments outside the government-sponsored plan. In the words of the Supreme Court, denying use of government funds to obtain certain procedures where private funding remains available, "places no obstacles ... in the [person's] path" to exercising their constitutional right.156 As such, a strict multi-payer system probably would not create an affirmative duty on the government because it would not amount to a monopoly over the health care payer or provider market.

Amore difficult question arises, however, after examining the economics of the current proposals. Specifically, critics argue that private insurers would be unable to compete with a multi-payer system armed with a public option, which, over time, would result in a de facto single-payer system.157 In single-payer health systems, health care is monopolized through government action.158 In this type of system, "the government taxes citizens for health insurance, distributes health cards and provides its citizens with health insurance. Individuals still choose their doctor but the government, not private insurance pays the bill."159 As a result, the government becomes the sole health insurer as the private market is decimated, leaving only one option for health care funding.

Opponents argue that because a public option has access to government subsidies, the public option will not compete in the same manner as other businesses, essentially allowing it to operate at a loss while providing huge discounts to citizens.160 According to Gregory Mankiw, a professor of economics at Harvard University, government "subsidies would prevent a public plan from providing honest competition for private suppliers of health insurance. Instead, the public plan would likely undercut private firms and get an undue share of the market."161 A recent study conducted by the Lewin Group suggests that a public option reimbursing at Medicare payment levels would reduce the number of Americans with private health insurance by "about 119.1 million people."162 That figure amounts to "about 70 percent of all people currently covered under private health insurance."163

Mankiw explains that as people gravitate to the cheaper government alternative, the public option will become more and more powerful- creating a demand-side monopoly- and will be able to pay at rates far below market levels.164 Dominant market participants, such as the public option, "can influence prices in a way that a small, competitive player cannot. ... [A] monopsony- a buyer without competitors- can reduce the price it pays below the competitive level by reducing the quantity it demands."165 Mankiw adds that, "[o]nce the government is . . . the only game in town, health care providers will have little choice but to take whatever they can get."166 Consequently, hospitals and physicians will be forced to accept these underpayments.167 The underpayments will then be transferred to the private sector, only increasing the price gap between private insurance and the public option.168 This increasing gap "will only hasten the flight" to the public option169 as "more and more consumers will be induced to switch."170 Ultimately, as opponents argue, these heavy subsidies will cause the public option to eliminate all other private alternatives.171

If this hypothesis materialized, it seems feasible that "the public plan could become a 'de facto' national single-payer plan."172 Certainly, one would find it difficult to argue with the notion that a single-payer system, where the government monopolizes the health insurance market, would amount to less than the type of monopolization sufficient to create an affirmative duty to fund health care treatments and procedures. As discussed in the following section, in a de facto single payer system, an individual's control over medical decisions could be limited in many ways, while effectively removing all private alternatives. Thus, the government would be under an obligation to ensure that personal health care control is not infringed upon by ensuring access to services essential to the individual exercise ofthat control.

2. Infringing on an Individual's Right to Control Medical Treatment through Rationing.

As previously discussed, government monopolization of health care is not, in and of itself, a constitutional violation. Monopolization must also coincide with some degree of restraint on an individual's ability to exercise his or her constitutionally protected right to control personal health care decisions. Under the current House proposal, a public option with no restriction on the types of treatments that would be funded, or the timeframe in which citizens could obtain treatment, would certainly impose no restraint on an individual's control over health care decisions. Critics, however, suggest that pressures to reduce rising health care costs will result in rationing and, if the public option eventually pushed all private options out of the market, individual control over one's medical care would be infringed.

Health care rationing exists throughout nearly all governmentcontrolled systems in some form or another.173 These systems carry a perception of long lines, inefficient bureaucracy, restricted choice, and lack of quality.174 Although different in some respects, these are all forms of rationing. In Canada, which adopted a single-payer health care system, rationing exists in the form of queues.175 In other words, expensive care is rationed through time due to delays in the payment for various services.176 Those in need of specialized care "take their [place] in line and wait and wait and wait, often suffering great pain and prolonged worry, hoping to be treated by a specialist before they are incapacitated."177 As one observer noted, "the wait for urgent heart surgery is eight weeks. The result: A cardiac patient is 10 times as likely to die waiting for surgery [in Canada] as he is to die on the operating table."178 In fact, nearly 1.4 million Canadians are waiting for some form of medical care, while almost 180,000 are waiting for surgery and 45% of those people report that they are in pain.179 This rationing affects the ability of Canadians to make decisions regarding the expethence of their health care treatment and, consequently, the timeliness and effectiveness of adequate medical care.180

While English health care is subject to the same rationing that is inherent in the Canadian structure, it is also criticized for employing more explicit forms of rationing.181 The British single-payer system has a "highly centralized financing structure" and the government exerts "tight control over the portion of gross national product (GNP) devoted to health."182 With this control, "health districts as purchasers can decide which services to fund."183 Major services are typically funded, but there are certainly examples where this is not the case. One of the most well known examples is the 1990's case of "Child B," a young girl diagnosed with Leukemia.184 After a relapse, she was expected to die in six to eight weeks without additional chemotherapy and a bone marrow transplant.185 The health authority ultimately refused life-saving treatment after determining it would not be worthwhile or cost effective.186 While the government did not control the services provided, its refusal to fund the necessary medical procedures effectively precluded private health care professionals from performing the life-saving procedures. It is difficult to argue that the refusal to fund life-saving treatments where private options are unavailable does not infringe on one's ability to make personal health care decisions. As illustrated in the above example, explicit rationing sometimes results in bureaucratic judgments that supersede the wants and desires of the patient.

Turning to the current health care proposals in Washington, a public option brings with it some of the same limitations as the single-payer systems of Canada and Britain. Within the public option, the health care budget is at the mercy of a changing political climate and, more importantly, a changing budget. This potential fluctuation could have profoundly negative consequences on the general public. Mankiw claims that any government sponsored health care in America "would somehow need to be rationed."187 Similarly, during the most recent national health care debate on comprehensive reform in the early 1990s, Daniel Callahan, the Director and Co-Founder of The Hastings Center, argued that all government health care involves some sort of rationing and that, because of the need to temper dramatically rising costs while also increasing accessibility, any reform of the American system would require rationing.188 According to Callahan, the United States "government would be foolish to promise an unlimited system of health care, one devised independently of the costs ofthat system. No country on earth, including one with the most generous system, has done that."189

Nearly every nation that has implemented a system of universal health care is "increasingly finding quality difficult to assure and the cost difficult to bear. And so these countries are seeking means of controlling cost, assuring quality, and maintaining universality of health care."190 The unavoidability of rationing is illustrated in the French health care system.191 France has adopted a multi-payer health care system consisting of both private and public financing, similar to some of the proposals currently being suggested in Congress.192 Despite this mix of public and private providers, however, France continues to face the challenges of runaway health care inflation.193 In fact, the "French national insurance system has been running constant deficits since 1985 and has ballooned to $13.5 billion."194 These constant deficits are clearly not sustainable for France and would be equally unsustainable for the United States if it were to adopt a similar system. The inability of the current French health care system to control rising costs is likely the reason the French are also gearing up for further reformation.195 These changes are likely to result in rationing procedures similar to that of Britain or Canada.

If the preceding hypotheses are correct, and some sort of rationing is inevitable in the public option, due process concerns become paramount. If the government cannot infringe upon or unduly burden an individual's fundamental rights,196 it logically follows that it cannot enact a form of rationing that compromises one's right to control individual medical treatment. Undoubtedly, explicit limitations on medical procedures, analogous to the British system,197 deprive individuals of key medical decisions. Similarly, government payment delays, such as those exemplified in the Canadian model,198 restrict decision making regarding the timing, urgency, and effectiveness of treatment. Although some may argue that these examples of rationing can be avoided while still addressing rising costs, France's problems of continued runaway costs call the unavoidability of rationing into doubt.199

In fact, current proposals before Congress suggest that rationing is already being built into U.S. health care reform. A bill recently released by the Senate Health, Education, Labor and Pensions (HELP) Committee called for the creation of a "Medical Advisory Council."200 This council would determine what medical products and services are "essential health care benefits" based on the "actuarial gross value of the benefits . . . [compared to those] provided under a typical employer plan" and suggest those that should and, more importantly, those that should not be covered by the public option.201 Furthermore, "America's Affordable Health Choices Act of 2009" would "recommend a benefit package based on standards set in the law."202 The bill is silent as to these standards, but critics suggest that these provisions are precursors to government rationing under the proposed public options.

Any form of rationing of an individual's right to have personal control over medical treatment could be subject to constitutional challenges on due process grounds. Adopting the undue burden framework set forth in Planned Parenthood v. Casey, government action may not place an undue burden that impedes the exercise of a person's constitutional right.203 Essentially, the concept of an "undue burden" consists of weighing the constitutional protection infringed upon against the government's interest in creating the burden.204 According to the Supreme Court, "The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to [exercise a constitutionally protected interest] will be undue."205

One of the most common themes in cases involving control over medical decisions is the state interest in preserving and protecting human life.206 This interest in protecting human life has been emphasized repeatedly. For example, in Washington v. Glucksberg, the Court noted numerous state interests in banning physician-assisted suicide, including the "preservation of human life."207 In Roe v. Wade, the Court recognized that "the State does have an important and legitimate interest in preserving and protecting the health" of people.208 Likewise, in Webster v. Reproductive Health Services, the Supreme Court upheld a law prohibiting the use of government funds from encouraging a woman to have an abortion due to the compelling state interest in "protecting potential human life."209 In Planned Parenthood v. Casey, the Court also acknowledged and emphasized the "State's interest in life."210

In the context of personal control over ordinary medical decisions, however, a governmental interest in the preservation of human life will not typically support rationing of health services. Personal control in making treatment decisions inevitably involves a personal value judgment that is most commonly directed at the preservation of one's own life, not the termination ofthat life. The state interest in preserving human life will often parallel an individual's interest in their control over medical treatment and the need for care that is not rationed. For example, if rationing is accomplished through long lines and queue times, an individual's choice would likely be infringed upon by being forced to wait for funding from the public option, even though that individual would prefer a shorter wait to ensure timely treatment. It goes without saying that timely treatment is in the furtherance of the preservation of life, not against it.

Similarly, explicit rationing of treatment, such as the denial of chemotherapy or other life-saving procedures, can create situations where individuals desire services that are deemed not economically feasible. Access to these treatments, assuming they have been judged safe and effective, certainly promotes rather than prevents the preservation of life. Consequently, it appears the interest in the preservation of human life would not support government rationing of medical treatments, or otherwise restricting personal medical procedures. Without a compelling governmental objective applicable to ordinary medical decisions, government rationing would create, at the least, an undue burden on an individual's right to make personal medical decisions.

On the other hand, the Supreme Court suggested in Harris v. McRae that the government's refusal to fund certain constitutionally protected procedures does not amount to a government intrusion on an individual's fundamental rights.211 In Harris, the Court held that funding restrictions limiting the use of Medicaid funds to reimburse the cost of abortions did not impinge on the liberty interest protected under the Due Process Clause, despite its implicit protection of a woman's right to decide whether to obtain an abortion.212 In reaching its decision, the Court analogized that while government may not prevent parents from sending their child to a private school, the government does not have an affirmative obligation to ensure that all persons have the financial resources to do so.213 Accordingly, an individual is not precluded from exercising their constitutionally protected rights when the intrusion in question is not of the government's own creation, such as indigence.214 Financial constraints that restrict citizens' abilities to enj oy a full range of constitutionally protected freedoms of choice are not the product of governmental restrictions on access to fundamental rights, but are rather that of indigence.215

Nevertheless, Harris did not involve a situation where the federal government had created a monopoly on an individual's access to their constitutionally protected rights- a prerequisite for finding a due process violation based on the government's failure to provide certain services.216 Harris was decided under the ambience of a primarily private health care system, a system where Medicaid is simply one government health care payer in the midst of many private insurers. Presumably, the plaintiffs indigence, and not the government's refusal to fund protected medical treatments, was the true cause of her burden. Otherwise, if the plaintiff had the wherewithal to pay private insurers, obtaining access to an abortion would have been relatively easy. If, however, the future of American health care were to reside in a de facto single-payer system, citizens' financial conditions would have little bearing on the ability to exercise the constitutionally protected right of making personal medical decisions. Specifically, if the government chose not to fund certain medical treatments, or to impose long waiting times, even a wealthy individual would be without other options if the private insurance market were decimated by the public option. In such a case, it would be government action- not an individual's financial status- that would be the true burden on an individual's right to make personal medical decisions.

Moreover, and equally important, the Harris Court's analogy between abortion funding and public schools is faulty when analyzed under the context of the public option. The public school system was not designed to subsidize school providers in the same manner as would the public health care option. Rather, the public school system was designed to act as education provider, not education payer. Because the public option217 is designed to act as health care payer, there is a significant dichotomy between education and health care. Analogizing the public school system to health care would look very much like the Department of Veterans Affairs, where the government has created a separate health care provider that directly competes with private institutions to provide citizens with health services.218 If the Department of Veterans Affairs was not receiving adequate funding for its services, it could not shift the burden of these underpayments to private hospitals because it acts separately and independently from private institutions.

With health care, however, the public option creates a vastly different outcome. In contrast with the public education system, the public health care option seeks to act as health care payer, not as a provider of services. For example, private doctors will see both patients whose health care is funded by private insurance and those whose health care is funded under the public option. The public option is expected to reimburse health care procedures at lower rates by using its overwhelming market domination to reduce costs on American families.219 As discussed above, economists suggest that this scheme will force single market participants- health care providers- to shift these gross underpayments to private insurers, thereby dramatically increasing the cost of private funding.220 Thus, economists predict that a public option will dramatically increase the price of private insurance,221 and in turn, impose significant obstacles to those seeking to avoid government rationing by turning to private insurers.222 Therefore, the Court's decision in Harris is not persuasive when analyzing the due process concerns of the public option and, thus, probably not sufficient to overcome an attack against the public option on due process grounds.

In sum, obviously an individual's right to control personal medical decisions is not absolute and must be balanced against other considerations, such as states' interests in protecting life. However, regarding ordinary medical decisions, states' interests in preserving life would not ordinarily provide a basis for rationing because rationing typically promotes untimely and inadequate care- a far cry from the preservation of life. If the government is not careful to ensure that health care reform does not amount to monopolization of the American health care system, the end result could be susceptible to constitutional attack.

III. Conclusion

In a single-payer system, care is often rationed in some form or another. In Europe, for example, access to certain treatments is expressly denied because it is too costly or inefficient. Other forms of rationing may be more subtle. In Canada, long lines and queue times plague the health care system, and in some cases, these long waits prevent timely access to needed care. While the United States does not seem poised to adopt a single-payer system, critics have argued that a public option, such as the one set forth in the current House bill, is merely a Trojan horse for a future single-payer system. If over time, as many critics fear, a public option health insurance plan evolves into what amounts to a single-payer system, the constitutional issues regarding treatment and reimbursement decisions will be manifold. Irrespective of the details of the future health care system, Congress must be aware of the constitutional concerns attached with an overhaul.

Based on current judicial precedent, it seems likely that the Supreme Court would recognize an individual's right to make personal medical decisions, provided, however, that the decisions do not diverge from the state's interest in the preservation, not termination, of life. As such, Congress should be vigilant to protect the ability of individuals to obtain private medical coverage when engaging in comprehensive health care reform. Similarly, the drafters of the final health care plan must be mindful that if a public option is passed, it must be structured in a manner that does not create insurmountable barriers to private insurers, which might ultimately lead to monopolization of the health care payer market by the federal government. It goes without saying that if the government became the primary health care payer in the United States, either through implementation of a single-payer system or through a de facto monopolization by squeezing private insurers out of the market, the government would certainly need to ensure that the ultimate health care proposal does not ration care because any rationing could infringe on a person's right to make personal medical decisions.

If these conditions are not met, the reformation plan might be subject to constitutional attack by citizens who feel that their Due Process rights have been violated, thereby preventing the much needed reform. Despite some sentiment that government health care could be more effective and fair than that provided by private insurers, one thing is certain- Congress needs to ensure that private insurers are not driven out of the market. With reform so desperately needed within the U.S. health care system, it would be a shame for Congress to enact a plan only to have it subsequently invalidated as unconstitutional by the Supreme Court.

1 Gallup Poll, Healthcare System, http://www.gallup.com/poll/4708/HealthcareSystem.aspx (last visited Mar. 19, 2010) (finding that as of November 13-16, 2008, almost eight in ten Americans were dissatisfied with the total cost of the current health care system).

2 FAMILiES USA, Hidden Health Tax: Americans Pay a Premium 1 (2009), http://www.familiesusa.org/assets/pdfs/hidden-health-tax.pdf.

3 Max Baucus, Call to Action: Health Reform 2009 1 (2009), http://finance.senate.gov/healthreform200 9/finalwhitepaper.pdf.

4 See, e.g., Jeffrey M. Jones, Majority in U.S. Favors Healthcare Reform This Year, July 14, 2009, http://www.gallup.com/poll/121664/Majority-Favors-Healthcare-Reform-ThisYear.aspx (finding 56% of all Americans favor a major reform bill in 2009).

5 See, e.g., Frank Newport, Constituents Divided, Highly Partisan on Healthcare Reform, Aug. 11, 2009, http: //www.gallup.com/poll/122234/ Constituents-Divided-HighlyPartisan -Healthcare- Reform. aspx (finding "mixed sentiments on the issue of a new health care reform bill").

6 Arthur Birmingham LaFrance, Healthcare Reform in the United States: The Role of the States, 6 Seattle J. for Soc. Just. 199, 200 (2007).

7 Cf. Jack Hadley et al., Covering the Uninsured in 2008: Current Costs, Sources of Payment, and Incremental Costs, 27 HEALTH AFF. W399 (2008) (discussing the implications of increasing coverage for the currently uninsured).

8 The "Patient Protection and Affordable Care Act" was passed in the Senate and the "Affordable Health Care for America Act" was passed in the House. See The Patient Protection and Affordable Care Act, H. R. 3590, 111th Cong. (2009), available at http://frwebgate.access.gpo.gov/ cgi-bin/getdoc.cgi?dbname=in_cong_bills&docid=f:h3590pp.txt.pdf; Affordable Health Care for America Act, H.R. 3962, 111th Cong. (2009), available at http: //frwebgate. access. gpo.gov/cgi-bin/getdoc.cgi?dbname=in_cong_bills&docid=f:h39 62eh.txt. pdf. Congress has considered various other bills, including a proposal from the Senate Health, Education, Labor and Pensions Committee (the "Affordable Health Choices Act") and a Tri-Committee proposal between the House Ways & Means, Energy & Commerce, and Education & Labor Committees (the "America's Affordable Health Choices Act of 2009"). See Affordable Health Choices Act, S. 1679, 111th Cong. (2009), available at http://help.senate.gov/BAI09A84_xml.pdf; America's Affordable Health Choices Act of 2009, H.R. 3200, 111th Cong. (2009), available at http://energycommerce.house.gov/Press_111/20090714/aahca.pdf.

9 See generally id. (explaining how the proposals seek to address the issues of accessibility and rising costs).

10 Theodore R. Marmor & Jonathan Oberlander, A Citizen's Guide to the Healthcare Reform Debate, 11 Yale J. on Reg. 495, 502 (1994).

11 See KAISER COMM'N ON MEDICAID ¿THE UNINSURED, KAISER FAMILY FOUND ., KEY FACTS : THE UNINSURED AND THEIR ACCESS TO HEALTH CARE 1 (2006), http://www.kff.org/uninsured/ upload/The-Uninsured-and-Their- Access-to - Health-Care-Oct- 2 o 04 .pdf (reporting numbers specifically of uninsured children and nonelderly adults).

12 Cathy Schoen et al., How Many are Underinsured? Trends Among US. Adults, 2003 and 2007, 27 Health Aff. W298, W298 (2008) (estimating the underinsured, ages 19-64, in 2007).

13 See Inst, of Med., America's Uninsured Crisis: Consequences for Health and Health Care 4 (2009), http://www.rwjf.org/files/research/20090224iomamericasuninsured crisis.pdf.

14 William P. Gunnar, The Fundamental Law That Shapes the United States Health Care System: Is Universal Health Care Realistic Within the Established Paradigm? 15 Annals Health L. 151, 155 (2006).

15 LaFrance, supra note 6, at 199.

16 Hadley et al., supra note 7, at W407-11.

17 LaFrance, supra note 6, at 222.

18 KAISER COMM'N ON MEDICAID & THE UNINSURED, KAISER FAMILY FOUND., SNAPSHOTS FROM THE KITCHEN TABLE: FAMILY BUDGETS AND HEALTH CARE 5 (2009), http://www.kff.org/ uninsured/ upload/7849 .pdf.

19 See HIDDEN HEALTH TAX, supra note 2, at 1.

20 CAL. NURSES ASS'N, NAT'L NURSES ORG. COMM., HEALTHCARE FACTS: THE COST OF HEALTHCARE- MORE AMERICANS PRICED OUT OF CARE 1 (2007), http://www.guaranteedhealthcare.org/files/facts_healthcare_costs.pdf.

21 MEENA SESHAMANI, THE COSTS OF INACTION: THE URGENT NEED FOR HEALTH REFORM 2 (2009), http://www.healthreform.gov/reports/inaction/inactionreportprintmarch2009.pdf.

22 Id.

23 Id.

24 LaFrance, supra note 6, at 222.

25 THOMAS E. MURPHY, BENEFITS AND BEYOND: A COMPREHENSIVE AND STRATEGIC APPROACH TO RETIREMENT, HEALTH CARE, AND MORE 232 n.85 (2010).

26 See Sean Keehan et al., Health Spending Projections Through 2017: The Babyboom Generation is Coming to Medicare, 21 Health Aff. W145, W146 (2008).

27 LaFrance, supra note 6, at 199.

28 PETER R. ORSZAG, CONG. BUDGET OFFICE, GROWTH IN HEALTH CARE COSTS : STATEMENT BEFORE THE COMMITTEE ON THE BUDGET 1 (2008), http://www.cbo.gov/ftpdocs/89xx/doc8 9 48 /01-3 1-HealthTestim0ny.pdf (noting that these costs are projected to rise to 25% of GDP in 2025 and 49% in 2082).

29 See, e.g., Daniel Callahan, Symbols, Rationality, and Justice: Rationing Health Care, 18 Am. J. L. & Med. 1, 1 (1992) (arguing that universal health care is impossible without rationing).

30 The Declaration of Independence para. 2 (U.S. 1776).

31 See W. Kent Davis, Answering Justice Ginsburg 's Charge that the Constitution is "Skimpy" in Comparison to our International Neighbors: A Comparison of Fundamental Rights in American and Foreign Law, 39 S. Tex. L. Rev. 951, 958 (1998).

32 Id.

33 See id.

34 Id.

35 See Jason B. Saunders, Note, International Health Care: Will the United States Ever Adopt Health CareforAll?-A Comparison Between the Proposed United States Approaches to Health Care and the Single-Source Financing Systems of Denmark and the Netherlands, 18 Suffolk Transnat'l L. Rev. 711, 719 & n.37 (1995).

36 Davis, supra note 31, at 958. At the time of drafting, protections of health care were presumed to be responsibilities of state and local governments as many towns had undertaken the responsibility of providing health care for their citizens. See Saunders, supra note 35, at 719.

37 Lynn D. Wardle, Lessonsfrom the Bill of Rights About Constitutional Protectionfor Marriage, 38 Loy. U. Chi. L.J. 279, 282-83 (2007).

38 U.S. Const, amend. IX.

39 Wardle, supra note 37, at 281-85 (2007).

40 Davis, supra note 31, at 958-59.

41 See U.S. Const, amends. I-X.

42 See Barron v. City of Bait., 32 U.S. 243, 247, 250 (1833) (stating that "limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument [,]" and that if the framers had meant to limit the States "they would have declared this purpose in plain and intelligible language").

43 Davis, supra note 31, at 960.

44 See U.S. Const, amend. XIII.

45 U.S. Const, amend. XIV.

46 See U.S. Const, amend. XIV, § 1.

47 Id. The Fourteenth Amendment merely restricts the actions of state governments. However, the Fifth Amendment- which is applicable to the federal government- contains a nearly identical provision, stating that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law." U.S. Const, amend. V. Under current Supreme Court precedent, the due process protections contained within these two clauses are identical. See Adamson v. California, 332 U.S. 46, 66 (1947) (Frankfurter, J., concurring) (noting that the Fourteenth Amendment Due Process Clause has the same potency in relation to states as does the Fifth Amendment Due Process Clause in relation to federal government); Hurtado v. California, 110 U.S. 516, 534 (1884) (explaining that the Fourteenth Amendment Due Process Clause restrains states in the same way as the Fifth Amendment Due Process Clause restrains federal government). As a result, they will be referred to interchangeably in this article.

48 See Davis, supra note 31, at 961.

49 Id.

50 Lochner v. New York, 198 U.S. 45, 53 (1905).

51 Id.

52 See generally id. (discussing general police powers of the State).

53 Davis, supra note 31, at 962 (citing Calder v. Bull, 3 U.S. 386, 388 (1798)).

54 See, e.g., Nebbia v. New York, 291 U.S. 502 (1934) (finding that a statute fixing the price of a quart of milk was a regulation in common interest and not a violation of the Fourteenth Amendment).

55 Webster v. Reprod. Health Servs., 492 U.S. 490, 521 (1989) (describing it not as a "fundamental right," but as a "liberty interest") ; Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 60-61 (1976); Roe v. Wade, 410 U.S. 113, 153 (1973).

56 Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965).

57 Zablocki v. Redhail, 434 U.S. 374, 406 (1978); Loving v. Virginia, 388 U.S. 1, 12 (1967).

58 Skinner v. Oklahoma, 316 U.S. 535, 541-43 (1942) (sterilization of "habitual criminals" held to violate equal protection clause of the Fourteenth Amendment).

59 Moore v. City of E. Cleveland, 431 U.S. 494, 505-06 (1977).

60 See, e.g., Meyer v. Nebraska, 262 U.S. 390, 391-93 (1923) (finding a state law banning "the teaching of any subject in any language other than the English language" as unconstitutional).

61 See Washington v. Harper, 494 U.S. 210, 221-22 (1990) (finding a liberty interest in "avoiding the unwanted administration of antipschopathic drugs"); Winston v. Lee, 470 U.S. 753> 766-67 (1985) (finding surgery to search for evidence not reasonable under the Fourteenth Amendment).

62 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973); see also Harris v. McRae, 448 U.S. 297, 312 (1980) (noting that if a law impinges upon a fundamental right explicitly or implicitly secured by the Constitution, the law is presumably unconstitutional). Clearly, the text of the Constitution identified the explicit rights of citizens. Randal S. Jeffrey, Equal Protection in State Courts: The New Economic Equality Rights, 17 Law &Ineq. 239, 260-1 61 (1999) . On the other hand, determining whether a right is implicit in the Constitution is less clear. Id.

63 Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965).

64 Roe v. Wade, 410 U.S. 113, 153 (1973).

65 See, e.g., Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990) (holding that the patient's wishes, not her families', are the sole determinant in deciding to remove life support) .

66 Griswold, 381 U.S. at 485-86.

67 Id. at 484.

68 Id. at 484-85 (citations omitted).

69 Id. at 485-86.

70 Id. at 498.

71 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

72 Id.

73 Id.

74 Id. (emphasis added); see abo Carey v. Population Servs. Int'l, 431 U.S. 678, 692-94 (1977) (holding that a law prohibiting distribution of contraceptives to minors also violated the right to privacy).

75 410 u.s. 113, 166-67 (1973).

76 Id. at 152-53.

77 Id. at 154.

78 Id.

79 Id. at 155-56, 164.

80 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).

81 Washington v. Glucksberg, 521 U.S. 702, 726 (1997).

82 Id. at 778 (Souter, J., concurring) (citing Casey, 505 U.S. at 857).

83 497 U.S. 261 (1990).

84 Id. at 265.

85 Id. at 268.

86 Id. at 265.

87 Id. at 278. Nevertheless, the Court did not expressly label the right to refuse medical treatment as "fundamental" or even identify the level of scrutiny used in evaluating government intervention of these decisions.

88 Id. at 293 (Scalia, J., concurring).

89 See id. at 279 (majority opinion). Specifically, Justice O'Connor stated that she "agree [d] that a protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions, . . . and that the refusal of artificially delivered food and water is encompassed within that liberty interest." Id. at 287 (O'Connor, J., concurring) (citations omitted). Similarly, in Justice Brennan's dissenting opinion, joined by Justices Marshall and Blackmun, he expressly stated that there is a "fundamental right to be free of unwanted artificial nutrition and hydration." Id. at 302 (Brennan, J., dissenting).

90 Id. at 286 (majority opinion).

91 Id. at 281.

92 Id. at 284.

93 Id. at 289 (O'Connor, J., concurring).

94 Washington v. Glucksberg, 521 U.S. 702, 744-45 (Stevens, J., concurring) (citing Fitzgerald v. Porter Mem'l Hosp., 523 F.2d 716, 719-20 (7th Cir. 1975)).

95 See id. at 744.

96 Id. at 763 (Souter, J., concurring) (citing Cruzan, 494 U.S. at 287-89 (O'Connor, J., dissenting)).

97 Id. at 735 (majority opinion); see also Vacco v. Quill, 521 U.S. 793, 799 (1997) (affirming the holding in Glucksberg that a law prohibiting assisted suicide does not infringe on a fundamental right).

98 Glucksberg, 521 U.S. at 735.

99 Id. at 722.

100 Id. at 711; see generally Susan Freiich Appleton, Assis ted Suicide and Reproductive Freedom: Exploring Some Connections, 76 Wash. U. L.Q. 15 (1998) (discussing the role of the debate on abortion rights and reproductive health in the debate on assisted suicide as structured by Glucksberg).

101 Glucksberg, 521 U.S. at 710.

102 Id. at 723 ("To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State.").

103 Id. at 728-32, 735. Relying on Glucksberg, the Supreme Court, in Vacco v. Quill, soon after reiterated that a law prohibiting assisted suicide does not infringe on a fundamental right.

104 On the other hand, in United States v. Rutherford, several terminally ill cancer patients sued to enjoin the government from prohibiting the sale of Laetrile, a drug yet to be approved by the FDA. 442 U.S. 544, 548 (1979). In ruling for the plaintiffs, the Court of Appeals for the Tenth Circuit exempted terminally ill patients from FDA restrictions, but did not hold that a fundamental right was inherent to the treatments. Id. at 550-51. On remand from the Supreme Court, which held that no exception within the FDCA allows terminally ill patients to acquire unapproved drugs, the Tenth Circuit held that patients had a protected right to decide whether to undergo treatment. Rutherford v. United States, 616 F. 2d 455, 457 (10th Cir. 1980). However, the court declined to extend its holding to the right to select a specific treatment not approved by the FDA. Id.

105 Mitchell v. Clayton, 995 F. 2d 772, 775 (7th Cir. 1993).

106 United States v. Burzynski Cancer Research Inst., 819 F.2d 1301, 1313-14 (5th Cir. 1987).

107 Carnohan v. United States, 616 F. 2d 1120, 1122 (9th Cir. 1980).

108 Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 711-12 (D.C. Cir. 2007), cert, denied, 128 S. Ct. 1069 (2008).

109 Id. at 711-13 & n.19.

110 Id. at 703-06.

111 Id. at 711. Finding no deeply rooted right, the court saw no need to determine whether a right to access was essential to the concept of ordered liberty. Id. at 711 n.19.

112 Id. at 712.

113 Id.

114 Id. at 714.

115 Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 128 S. Ct. 1069 (2008).

116 See, e.g., Washington v. Glucksberg, 521 U.S. 702, 763 (1997) (Souter, J., concurring) (recognizing that the right to "personal control over medical treatment" is not absolute).

117 See, e.g., Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990); Roe v. Wade, 410 U.S. 113 (1973) (acknowledging that even in these extraordinary situations, adults were not prohibited from making their own medical decisions).

118 Washington v. Harper, 494 U.S. 210, 213-17 (1990).

119 Id. at 221-22. Despite this protection, however, the Court ultimately held that the policy regarding administration of drugs did not violate the prisoner's substantive due process rights because the policy only allowed administration after a finding of mental disorder, likelihood of harm to self or others if untreated, a prescription by a psychiatrist, and second approval by a second psychiatrist. Id. at 222.

120 Id. at 223-25.

121 DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195 (1989).

122 Id.

123 See, e.g., Webster v. Reprod. Health Servs., 492 U.S. 490 (1989) (the Due Process Clauses generally confer no affirmative aid, even where necessary to secure rights of which it may not deprive the individual); Williams v. Zbaraz, 448 U.S. 358 (1980) (state not required to pay for medically necessary abortions for which federal reimbursement is unavailable); Maher v. Roe, 432 U.S. 464 (1977) (the Equal Protection Clause does not require a state to pay for abortions).

124 Harris v. McRae, 448 U.S. 297, 317-18 (1980).

125 Id. at 316.

126 Id. at 318.

127 429 U.S. 97 (1976).

128 Id. at 103-05.

129 Id. at 103.

130 Id. at 104 (quoting Spicer v. Williamson, 132 S.E. 291, 293 (1926)).

131 Id. at 103.

132 Id.

133 Id. at 104.

134 Id. at 103-04.

135 Youngberg v. Romeo, 457 U.S. 307, 309 (1982).

136 Id. at 324-25.

137 Id. at 317.

138 Id.

139 Id. at 324.

140 Id. at 315-16; see also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (holding that the Due Process Clause requires the responsible government or governmental agency to provide medical care to suspects in police custody who have been injured while being apprehended).

141 DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 200 (1989).

142 Id. at 196.

143 Id. at 200.

144 Boddie v. Connecticut, 401 U.S. 371, 372, 382-83 (1971).

145 Id. at 376,

146 Id. at 382-83.

147 Id. at 374.

148 Id. at 383.

149 See supra note 8.

150 For instance, the Affordable Health Choices Act, introduced by the Senate Health, Education, Labor and Pensions Committee (HELP), contained a multi-payer proposal aimed at improving accessibility by regulating insurers and establishing a public option that would take advantage of reduced administrative costs to compete with private insurers. See Press Release, Senator Edward M. Kennedy, Chairman of the Health, Educ, Labor & Pensions Comm., HELP Committee Democrats Announce the "Affordable Health Choices Act" (June 9, 2009), available at http://help.senate.gov/newsroom/press/release/?id=a7af68bdd7b3-4C7a-b4od-4i87ifofb929&groups=Chair. Similarly, the House Committees on Ways & Means, Energy & Commerce, and Education & Labor also recently introduced "America's Affordable Health Choices Act of 2009," a bill that would, among other things, create a national Health Insurance Exchange that would offer a public option. See H. R. 3200, 111th Cong. § 1, 201, 221 (2009), available at http://energycommerce.house.gov/Press_111/20090714/aahca.pdf.

151 Cf The End of Private Health Insurance: When Government 'Competes/ Guess Who Always Wins? Wall St. J., Apr. 13, 2009, at A14 (arguing that the public option will not actually encourage private competition). The Senate Finance Committee's proposed bill does not include a public option, rather it suggests a series of cooperatives designed to facilitate a more competitive marketplace for health insurance. See America's Healthy Future Act of 2009, S. 1796, 111th Cong. § 1, 2251 (2009), available at http://www.finance.senate.gov/ sitepages/leg/LEG%202009/ioi909%2oAmerica's%2oHealthy%2oFuture%2oAct%2oLe gislative%20Language.pdf.

152 See The End of Private Health Insurance, supra note 151.

153 See generally Press Release, supra note 150 (providing a summary of the "Affordable Healthy Choices Act").

154 See id.

155 See id.

156 Maher v. Roe, 432 U.S. 464, 474 (1977).

157 See, e.g. , The End of Private Health Insurance, supra note 151 (asserting that a public option would potentially mark the end for private insurers).

158 See Sally C. Pipes, Canadian Example Is Very Clear: Clinton Plan Means Health Rationing, 50 Hum. Events 12 (1994).

159 Id.

160 See The End of Private Health Insurance, supra note 151.

161 N. Gregory Mankiw, The Pitfalls of the Public Option, N.Y. Times, June 28, 2009, at BU5.

162 John Sheils & Randy Haught, The Cost and Coverage Impacts of a Public Plan: Alternative Design Options 4-6 (The Lewin Group, Staff Working Paper No. 4, 2009), available at http : //www.lewin .com /content/ publications/LewinCostandCoveragelmpactsof PublicPlan-Alternative%2 o DesignOptions.pdf.

163 Jd at 4-5.

164 The End of Private Health Insurance, supra note 151 (for example, "Medicare's current reimbursement policies pay hospitals only 71% of private rates, and doctors 81%").

165 Mankiw, supra note 161.

166 Id.

167 The End of Private Health Insurance, supra note 151.

168 Id.

169 Id.

170 Mankiw, supra note 161.

171 The End of Private Health Insurance, supra note 151.

172 Nat'l Bus. Coal, on Health, Health Care Reform- The Public Plan Option (2009),http://www.nbch.org/NBCH/files/ccLibraryFiles/Filename/oooooooooo8i/NBCH _Public_Plan_Primer_June_2 009 .pdf.

173 Callahan, supra note 29, at 1-2 ("Each [country] provides a decent level of health care. None provide all the health care that people might want, nor necessarily provide it in a way in which they would most like to have it.").

174 See Pipes, supra note 158.

175 Id.

176 See id.

177 Id.

178 Id. (emphasis added).

179 Id.

180 See id

181 See David Mechanic, Muddling Through Elegantly: Finding the Proper Balance in Rationing, 16 Health Aff. 83, 87-88 (1997).

182 Id.

183 Id.

184 Id. at 89.

185 Id.

186 See id.; see also N. Malone & J. Rycroft-Malone, Equity and Rationing in the NHS: Past to Present, 6 J. Nursing Mgmt. 325, 325 (1998).

187 Mankiw, supra note 161.

188 Callahan, supra note 29, at 5.

189 Id.

190 LaFrance, supra note 6, at 207.

191 Kerry Capell, The French Lesson in Health Care, Bus. Wk., July 9, 2007, at 98.

192 Id.

193 Id.

194 Id. at 99.

195 Id.

196 See supra text accompanying notes 50-62. Private health care is not without its own forms of rationing. Insurance companies ration care on a daily basis. Nevertheless, while it may seem patently unfair for private actors to ration care where government is prohibited, the Constitution does not impose these same restraints on private actors and is, thus, beyond the scope of this comment.

197 See supra text accompanying notes 181-86.

198 See supra notes 174-80 and accompanying text.

199 See supra text accompanying notes 192-95.

200 See Affordable Health Choices Act, S. 1679, 111th Cong. § 3103(a)(1) (2009).

201 Id. § 3103(h).

202 H.R. 3200, 111th Cong. § 123 (2009), available at http://energycommerce.house. gov/Press_in/200907i4/aahca.pdf.

203 505 u.s. 833, 875-78 (1992).

204 See id. at 876.

205 Id.

206 See, e.g., Roe v. Wade, 410 U.S. 113, 163 (1973) (discerning at what point during a woman's pregnancy the State has a compelling interest in the preservation of life).

207 521 U.S. 702, 728 (1997).

208 Roe, 410 U.S. at 162.

209 492 U.S. 490, 519 (1989).

210 Casey, 505 U.S. at 869.

211 448 U.S. 297, 317-18 (1980).

212 Id. at 316-18.

213 Id. at 318.

214 Id. at 316-17.

215 Id. at 316.

216 See supra text accompanying notes 140-48.

217 While the wealthy individual would also have the option of paying for the needed procedure out-of-pocket rather than being restricted to a non-existent private insurance market, such action might also be precluded by the existence of a public option. Specifically, the reason economists predict that a public option would drive private insurance out of the market is due to the fact that it would increase private costs to a point where private payments- those made by either insurance companies or private individuals- would be too prohibitive for even the wealthy. See supra notes 164-71. Therefore, government action could be said to preclude individuals from paying out-of-pocket costs just as economists predict it will do so with respect to insurance payments.

218 See generally Dep't of Veterans Affairs, VA Historyin Brief, http ://wwwi.va.gov/ opa/feature/history/docs/histbrf. pdf (describing the history behind the separate health care structure devised for veterans).

219 The End of Private Health Insurance, supra note 151.

220 Id.

221 Id.

222 Mankiw, supra note 161.

Author affiliation:

J. Paul Singleton, J.D.*

Author affiliation:

* Associate, Manier & Herod, Nashville, Tenn.; B.S. , summa cum laude> University of Kentucky, 2007; J. D., summa cum laude and Order of the Coif, University of Tennessee College of Law, 2010. This article was published originally at Jj Tenn. L. Rev. 413 (2010) and is reproduced here by permission of the Tennessee Law Review Association, Inc.

The use of this website is subject to the following Terms of Use