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.])”