The good, the bad, and the ugly: how the due process clause may limit comprehensive health care reform.

Author:Singleton, J. Paul
 
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ABSTRACT: 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.

  1. Introduction

    Dissatisfaction with the American health care system is widespread and growing? 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? 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 $10,728. (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 funding (28)--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.

  2. 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...

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