Archive for April 2010

A unique cause of action against federally-mandated health insurance

April 16, 2010

Private and confidential medical details merit Constitutional protection. (Can you say Roe v. Wade?)

Physicians, citizen groups, and many states are lining up to challenge the constitutionality of a federal mandate to purchase health insurance.  The primary claim is that the federal government has no authority to force Americans to purchase a product.

A Mississippi attorney has jumped in with a unique claim — the mandate is a violation of the same right to medical privacy that underlies the right to abortion and birth control. (Roe v. Wade and Griswold v. Connecticut.)

Attorney K. Douglas (Doug) Lee, who describes himself as a Christian and a conservative, says requiring Americans to buy health insurance will “require them to share private and personal information” with the company that writes the policy, and that there’s a significant body of law to support his assertion that it’s unconstitutional.

Here’s more from the complaint: “… by requiring Plaintiffs to abide by the Act’s individual mandate, Congress is also compelling Plaintiffs to fully disclose past medical conditions, habits and behaviors. Not only will the insurer be privy to all past medical information, Congress’s individual mandate will, by necessity, allow the compelled insurer access to Plaintiffs’ present and future medical information of a confidential nature… Plaintiffs should not be forced to disclose the most intimate details of their past, present and future medical information.”

The Reasonable Reporter, in her capacity as co-host of a radio program focused entirely on privacy and cybersecurity, finds this intriguing.

True enough that individual privacy is threatened by the health care reform. One of health reform’s underpinnings that long predates the current congress and President Obama is an invasive scheme to digitize and database the medical records of every American, and make those records available for a variety of novel official uses. Recall the story published last year that imagined local health officials mashing up real-time cell phone tracking data with citywide flu diagnoses by neighborhood, in order to alert citizens to the number of people in their immediate vicinity – right this minute —  who might be carriers.

Leaving aside whether this scenario would create a healthier society, or whether it makes the hair on your neck stand up, it’s difficult to find a federal database that hasn’t been given poor marks for security by the federal government’s own auditors at the GAO.  There is, furthermore, no shortage of examples where citizen data has been lost, stolen, sold or otherwise mishandled at government agencies from school districts to state payroll offices, courts of law and county health departments.  This leads to is slim hopes of medical privacy for anyone once electronic medical records are in place, even if they just sit there unused.

But back to the constitutional objection. Below is an audio interview  with Doug Lee, whose clients are petitioners in the suit invoking medical privacy.  That’s just one of the elements of the complaint, by the way.  It’s long, and it overlaps in many ways with others that have been announced. Medical privacy language is found in paragraph 73. To hear the interview, you may download the MP3 file, or stream the segment below. It is 9 minutes long, taken from The CyberJungle.

Suing the feds over ObamaCare: Oh, yeah, it’s political.

April 9, 2010

Americans claim not to like it when the courts are used for political purposes. This is, of course, romantic nonsense.  The courts are used constantly for political purposes.  Nonetheless, elected officials who find themselves fighting the good fight in court usually insist those fights aren’t political.

Thanks to Nevada’s steadfast preference for a part-time legislature, you can pretend if you want to that the scuffle between Governor Jim Gibbons and Attorney General Catherine Cortez Masto over joining the Florida ObamaCare lawsuit is not political. Your illusion is supported only by the even-numbered year, and the empty chambers on Carson Street. Were the lawmakers in session, politics would push its way to center stage, and nobody could claim to be above the fray.

For evidence, the Reasonable Reporter points to Tennessee, where a different kind of executive branch split has developed into a magnificent political drama.

Tennessee’s Democratic Governor Phil Bredesen made headlines last fall, when he called the federal health care bill “the mother of all unfunded mandates.”   But now, on the question of suing the feds, Bredesen has mellowed, leaving the decision to Attorney General Bob Cooper, also a Democrat. Cooper’s response loosely mirrored that of Nevada’s Cortez Masto. He said he’d analyze it, but didn’t believe a court fight would be worth the resources it would require. Cooper has not yet issued a formal opinion on the constitutionality of the new law, saying he’ll wait until the reconciliation process is complete.

It’s Tennessee’s Republican Lieutenant Governor, Ron Ramsey, who has urged taking ObamaCare to court, and he’s working with state legislators to leave Governor Bredesen no choice, politically speaking.  Tennesseans are in favor of joining the Florida lawsuit by more than two-to-one, and members of the Tennessee legislature are key players in a scheme that features voter anger as a tool.

Ramsey spokesman Lance Frizell told the Reasonable Reporter today that he expects both houses to approve amending a current state law that authorizes the governor, in consultation with the attorney general, to hire outside counsel. The revised statute will erase the attorney general from the process, and authorize the governor to hire outside counsel on his own.

Ramsey’s strategy is to then call upon Governor Bredesen to do what Jim Gibbons did this week. Bredesen will have to choose between joining the Florida lawsuit or flouting the will of Tennessee voters. Bredesen is termed out, but is a still-viable politician with future options that could include seeking a U.S. Senate seat, says Frizell.

Oh, and one more important detail —  Lt. Governor Ramsey is running in a fairly tough three-way primary for Governor.

But this is not the end of the story. Republicans will soon force Attorney General Cooper to make a choice similar to the one they’re forcing on Bredesen.

In the Tennessee General Assembly, Republican Mike Bell introduced the Health Freedom Act on the day after the federal package passed. In briefest terms, it’s an opt-out law for individual citizens, and it requires the state attorney general to defend any Tennessean who is prosecuted for failure to buy insurance in accordance with the new federal mandate. Bob Cooper has opined that Bell’s bill is superseded by federal law.

Fine, say Ramsey and Bell.  But Attorney General Cooper has not addressed the constitutionality of the federal health care reform.  They are now pushing a joint resolution that formally asks Cooper – having ruled out his support for statutory protection of Tennesseans – to take a stand on the constitutionality of the federal health care reform.

“My guess is, he will say no,” said Frizell, “And we will proceed from there in another way.”  He didn’t elaborate, but there’s an additional twist to Cooper’s political status. The Tennessee attorney general is not elected. He’s the only state attorney general in the nation appointed by the state Supreme Court.  This has long been a topic for political consternation.

Bell told the Reasonable Reporter in a phone interview that he is also co-sponsoring a bill to change the way the attorney general is selected.  Never waste a good crisis?

Back to Nevada, where the official dialog surrounding the Florida lawsuit, to which Nevada is now a party,  is rational and reasoned. The talk churning beneath the surface, though, bristles with accusations and political deprecation. The anti-Gibbons brigade denounces the governor’s use of his authority — which they say is questionable when it comes to hiring outside counsel — to bolster his weak re-election campaign.  The attorney general is called “derelict in her duties,”  even ripe for impeachment, were it not for the fact that she could only be prosecuted by calling a costly special session. (And, well, an assembly chamber packed with Democrats is hardly the place to get the impeachment ball rolling.)

It is possible, by the way, to be both authentically certain that the new law tramples individual rights, and to use the outrage to political advantage. It is also possible both to harbor authentic doubts about successfully challenging the law, and to use those doubts as cover when public opinion is not on your side.  It’s possible that it’s not political, even though it is.