A physicians’ organization employed an intriguing argument in joining the suit against the Affordable Care Act. The legal brief declared, in effect, that under the health law patients have fewer rights than perpetrators of violent crimes. “Under the Constitution, a patient has a right to a ‘private enclave’ where his or her medical care and information are private. The individual mandate [in the law] obliterates that enclave,” the brief said.
The amicus brief was filed April 4 in support of the Commonwealth of Virginia and 27 other states to affirm the unconstitutionality of the year-old law. The case is pending in the Court of Appeals for the Fourth Circuit. The brief condemned the law as “the most offensive, harmful and unconstitutional legislation enacted by Congress in a generation.”
That’s how the attorney for the Association of American Physicians and Surgeons (AAPS) described the Affordable Care Act (ACA), widely known as Obamacare. The national physicians’ group representing approximately 5,000 professionals is the first such organization to sue the government over the unpopular act.
Their brief made a persuasive case on the issue of patient privacy. It said, quoting another Appeals Court ruling, “There can be no question that an employee’s medical records, which may contain intimate facts of a personal nature, are well within the ambit of materials entitled to privacy protection. Information about one’s body and state of health is a matter which the individual is ordinarily entitled to retain within the ‘private enclave where he may lead a private life.’”
The right to a “private enclave” underlies Fourth and Fifth Amendment jurisprudence.
The brief cited the Miranda ruling on individual liberties: “Those who framed the Constitution and the Bill of Rights were aware of subtle encroachments on individual liberty. They knew that ‘illegitimate and unconstitutional practices get their first footing…by silent approaches and slight deviations from legal modes of procedure…The privilege was elevated to constitutional status and has always been ‘as broad as the mischief against which it seeks to guard…”
The brief continued:
To protect personal medical information, the most private of private enclaves, an individual must be allowed to pay for medical care directly and not be required to purchase health insurance….By forcing individuals to purchase medical insurance, ACA destroys a patient’s right and ability to keep medical information private.
In a footnote, the brief noted the risk of loss of private information. “Today,” it said, “many private insurers, federal agencies and their respective business associates outsource at least part of their operations…(reference to a General Accountability Office report on offshore outsourcing of personal information in Medicare, Medicaid and Tricare [the health care program for the military.])”
The brief also argued that the individual mandate to buy insurance cannot be justified under the Commerce Clause of the Constitution. This contention was stated forcefully in the decision of U.S. District Judge Roger Vinson March 4, ordering the Justice Department to quickly file its appeal with the Circuit Court of Appeals.
Two other organizations of doctors, the American Medical Association and the American Academy of Family Physicians, have supported the ACA. These groups were given special benefits under the law, which lured them into a position of favoring the law.
The AAPS is a conservative, national organization of physicians in all specialties, founded in 1943 “to protect the sanctity of the patient-physician relationship.” It explained in the brief that it adheres strictly to the Hippocratic Oath. That oath states in part: “With purity and holiness I will pass my life and practice my art…Whatever…I may see or hear in the lives of men which ought not to be spoken abroad I will not divulge, as reckoning that all such should be kept secret.” Several distinguished physicians joined in filing briefs individually.
The Justice Department, following the perspective of the Democrats who conjured up the health-care overhaul, contended that it was justified under the Constitution’s Commerce Clause because it had “a substantial effect on the economy.”
The AAPS brief said that view showed an ignorance of economics, and quoted Nobel Prize-winning economist Paul Samuelson’s treatise on economics, the most popular economics textbook of the second half of the twentieth century. It states that “[e]conomics…is the study of those activities which…involve transactions among people.”
The defendant in the suit is the Secretary of Health and Human Services Department, which is speedily putting the law’s provisions into effect. “The Secretary has pointed out a litany of Congressional ‘findings’ to argue that Congress properly enacted the mandate under the Commerce Clause…Applying this rationale,” said the AAPS brief, “a court could easily find the other enumerated powers of Congress superfluous. The powers to declare war, establish post offices, and provide exclusivity for inventors…Under the Secretary’s theory, these clauses are unnecessary.”
The brief said Congressional “findings” “are not facts at all, but rather something else– conclusions based on…a plethora of assumptions….When a court blindly accepts Congressional findings as facts, it amounts to a dereliction of its duties. Saying something is a fact does not make it so…For example, Congress made the following finding: ‘Half of all personal bankruptcies are caused in part by medical expenses.’ In another section Congress found ‘62 percent of all personal bankruptcies are caused in part by medical expenses.’ It is impossible for both findings to be true. Perhaps neither is true.”
So, Obamacare seems ever entangled in its web of falsehoods.