President Obama has made no secret of his belief that health care should be “a right for every American.” This moral argument for reform was no doubt among the strongest offered by Obamacare’s proponents.
Unfortunately, Obamacare doesn’t guarantee a right to health care. Instead, it undermines that right by subverting Americans’ freedom to obtain the health care they prefer.
The Ninth Amendment stipulates that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, there’s nothing in the Constitution to stop anyone from claiming a “right to health care.”
But if the Ninth Amendment provides the basis for a right to health care, the Tenth Amendment makes it clear that the federal government has no power to control how Americans exercise that right.
The 10th Amendment states that the federal government possesses only a small number of “enumerated powers.” A quick examination of the rest of the text reveals that requiring all Americans to purchase health insurance – as Obamacare does – isn’t among them.
In short, defining health care as a right doesn’t mean that the government gets to meddle in it. To see why, consider an explicitly defined constitutional right, the right to free exercise of religion.
If the founders had approached our right to freely worship with the same gusto they’ve approached the right to health care, we’d likely face a battery of new institutions designed to “protect” our religious rights.
A hypothetical Department of Religious Practice might tax and subsidize church buildings and religious instruction in order to make sure that all Americans had access to an acceptable level of religious inspiration.
To protect adherents, federal officials might stipulate that all faiths offer a bare minimum promise of spiritual healing and salvation. Government scientists might set up a Comparative Religions Institute, to determine which creeds delivered the best outcomes – spiritual and otherwise – for their followers.
Such government actions to “protect” Americans’ right to worship would in actuality shred what any rational person would consider a right to freedom of religion. But this is exactly the path outlined by proponents of a government-controlled right to health care.
The latest Rasmussen poll shows that 58 percent of Americans want Obamacare repealed. For many, the law is simply too costly. Others are concerned that Obamacare’s multibillion-dollar taxes on pharmaceutical companies and medical-device makers will stifle medical
But more and more Americans believe that Obamacare will run aground on the shoals of the Constitution. No less than 42 state legislatures have introduced bills that would assert their citizens’ right to be free of government coercion when choosing among health-care options.
Further, 21 state attorneys general have launched a suit challenging the constitutionality of Obamacare’s mandate that all individuals buy health insurance, and the latest polls might cause more to jump on the bandwagon.
But this litigation is much more than a political stunt by ambitious attorneys general. The National Federation of Independent Business has also joined the plaintiffs.
Many independent constitutional scholars scoff at the notion that the Constitution authorizes Obamacare. Prof. Randy Barnett of Georgetown University, for instance, argues that “requiring individuals to enter into an economic relationship with a private company has never been done before under the commerce clause.”
If member of Congress were really committed to effective health reform, they’d brush up on the 10th Amendment and reduce the federal government’s interference in Americans’ right to health care.
One easy way to do so would be to amend the Internal Revenue Code to allow individuals to purchase health insurance with our pre-tax income, instead of limiting our coverage to policies chosen by our employers.
Not only would such a change save consumers money, it would allow families to choose health insurance that’s right for their circumstances and is portable from job to job and state to state.
Obamacare’s most strident defenders have long viewed health care as a right. Unfortunately, their signature legislative achievement gives Congress unprecedented license to prevent Americans’ ability from exercising that right.
John R. Graham is director of health care studies at the Pacific Research Institute.