Editor’s Note: This is Part One in a two-part series.
“Let these truths be indelibly impressed on our minds — that we cannot be happy without being free — that we cannot be free without being secure in our property — that we cannot be secure in our property, if without our consent, others may, as by right, take it away –…”
— Founding Father John Dickinson, 1767, in his seventh Farmer’s Letter to the Inhabitants of the British Colonies
Following Ruth Bader Ginsburg’s death, conservatives have a unique opportunity to pursue the restoration of sanity to public health jurisprudence, which has largely taken leave of its senses since Griswold v. Connecticut in 1965. It is unusual to label public health as a critical issue for the Supreme Court, but in the aftermath of the notorious RBG’s 25-plus years of judicial activism and embrace of a living Constitution that said whatever she wanted it to say, it is time for a new Justice, such as Amy Coney Barrett, who is less interested in celebrity than probity.
If nothing else, this year’s cavalcade of public health folly (riots good / worship and kids’ sports bad; CCP virus will kill us all / CCP virus is nothing to worry about; lockdowns will save us / lockdowns are killing us; masks not needed / masks vital / masks don’t matter because nearly everyone getting CCP virus wore a mask) should teach Americans they have little to gain by intuitively trusting any bureaucrat, elected official, or white-coated tyrant who bombasts about public health.
Senator Josh Hawley (R-MO) has gone so far as to assert that any nominee worthy of consideration for the Court must be willing to say that the most notorious healthcare case in Court history, Roe v. Wade, was wrongly decided. To really have a court that corrals public health overreach will require more from the new justice. Here is my public health wish list for a new justice.
Undo the abortion hydra of Griswold, Roe, and Doe. While Senator Hawley is correct that Roe was decided wrongly, the whole abortion policy mess starts with Griswold. In Griswold, William O. Douglas hallucinated his now infamous Constitutional penumbras and emanations. From that mist emerged a right to privacy, which, as Judge Robert Bork correctly schooled Senator Joe Biden in 1987, simply does not exist in the Constitution. We may all value privacy and believe it an important public and private virtue. But it is not a Constitutional right. If we want it there, let’s have that debate and amend the Constitution.
Once Griswold is reversed, Roe really begins to totter. The trimester framework has already been gutted (Casey). Despite that, the Supremes have never met a restriction on abortion that they can abide. This has, of course, emboldened hardcore pro-abortionists such as Democrats in Virginia and New York to draft bills that read very much like state permission to commit infanticide. Ralph Northam’s defense of the odious Virginia bill was so unintelligible that it was positively Biden-esque.
The critical part of extinguishing Roe, however, is to reverse Doe v. Bolton. In Doe, a decision released on the same day as Roe v. Wade, Harry Blackmun, apparently drinking again from Douglas’ bottle, ruled that a woman’s health — her medical gestalt, her entire state of being — is a Constitutionally protected set of characteristics, and that relying upon that gestalt, only she and her physician can decide whether or not to kill an unborn child. It is the only decision that, by grant of a right appearing nowhere in the document itself, gives the power to kill dependent beings — including countless girls and babies of color — to half the population. Doe put women in the same class as Native Americans and prisoners as the only people with Constitutionally protected healthcare rights, or, in this case, the right to healthcare that kills.
If Griswold, Roe, and Doe are overturned, or their scopes greatly narrowed, abortion remains legal, but the entire debate returns to the states, where it belonged all along. Thanks to this abortion today-abortion tomorrow-abortion forever judicial trifecta, abortion is the only medical procedure that is Constitutionally sacrosanct. Why not grant sick kids a Constitutional right to bone marrow transplants? Or, because heart disease is a leading killer of men, how about a Constitutional right to coronary artery bypass surgery for men? Most people do not realize that the federal government, through the Food and Drug Administration, regulates only drugs and devices, not procedures. A procedure is part of medical practice, the regulation of which is a police power reserved to the states, which license both physicians and hospitals. Since Roe and Casey, states around the country have tried to restore some measure of the status quo ante by putting limits around unfettered abortion rights. But thanks to jurists like RBG, who apparently loved being loved more than she loved the Constitution, they were largely beaten back.
Finish off the Affordable Care Act. By now, Chief Justice Roberts has certainly finished his victory tour, sashaying through the salons of Georgetown in celebration of his addled “it-looks-like-a-tax-so-it-must-be-a-tax” concoction in NFIB v. Sebelius in 2012. While the individual mandate has thankfully been undone under President Trump, not enough has happened to pull Americans out of the misery imposed by the ACA. Without the individual mandate, which was wrongly grounded in the inexplicable Wickard decision from 1942, there is no reason to let the ACA stand at all. The Founders never intended the Constitution to be used coercively against citizens to prescribe how, when, where, and why they will engage in commerce at the federal government’s command. Especially not health insurance.
As the Fed struggles to find inflation under any rock it turns over, the healthcare industry invents it, using the ACA as its tool to grab taxpayer, employee, and employer dollars as fast as it can. Health plans and drug companies are A-rated stocks, the unemployment rate amongst physicians and nurses is negligible (even without the pandemic), and waste, fraud, and abuse run rampant. Nearly one-third of every dollar poured into the healthcare industry is wasted on care that is wrong, unnecessary, or injurious. From worthless workplace wellness programs to a baseless fascination and expensive obsession with clinical screenings that produce revenues for providers but not actual health improvements for regular people, the ACA was, is, and always will be, a sop to the industry. Laughably, ACA supporters such as the Commonwealth Fund claim that the law has “consolidated” gains in the healthcare industry. You need look no further for an explanation about why the healthcare industry en masse supports it.
The bottom line is this: under the ACA we spend more than ever, we waste more than ever, and morbidity and mortality have improved barely an iota a decade after passage. If all this healthcare is so damn good for us, where is all the bang for the buck? If we want the federal government to regulate all health insurance, let’s dismiss the contrivance of the ACA. Amend McCarren-Ferguson and ERISA and regulate all health plans from on high. Cost control, care quality, and outcomes undoubtedly will improve quickly and dramatically (wink wink).
In part two of this essay, I will explore four important but unconventional health issues that almost never get attention from the mainstream media, including the Second Amendment and the President’s intent to withdraw from the World Health Organization.