Remember, during the fight over Obamacare, extremists’ “lie of the year” invoking “death panels” – the notion that government, rather than a patient and doctor, would decide whether to withhold treatment? This threat to our sense of liberty – to control decisions about our bodies – has now been blessed by the conservative Supreme Court majority in Dobbs emphatically removing any constitutional right underlying abortion.
The conservative court could have recognized a right to protect a woman’s own body and health, with appropriate restrictions for abortion. Instead, it squarely held: “A law regulating abortion, like other health and welfare laws . . . must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests” (emphasis added).
As almost any reason (including cost) constitutes legitimate government interest under this “rational basis” test, the Dobbs decision supports broad government control over health care – not just whether government would pay but what treatment will be allowed and, therefore, who might die. Just as states now (indeed, sometimes literally by panels) may condemn a pregnant woman by disallowing abortion despite her doctor’s conclusion that she faces a serious potential risk of death down the road, the decision of the Dobbs majority applies to other potential medical threats as well.
Consider prostate cancer, which generally grows slowly, such that most men with prostate cancer will die of something else. Might a legislature rationally decide not to pay for such treatment, or even ban it to avoid the waste of limited medical resources? Lack of early treatment might ultimately doom some suffering from prostate cancer and other conditions, but the Dobbs majority did not allow for any exception for a medical decision to possibly save one’s life. And the Dobbs majority also rejected application of equal protection principles to single-sex medical procedures like abortion or prostate cancer.
Although prostate cancer may not be on the proverbial cutting block (for legislatures or the court) precisely because it is almost exclusively a male disease, the trend in medical care in the U.S. will almost certainly force the issue of priorities, nonpayment and even prohibitions in the years to come.
An expected continued decrease in doctors and other medical professionals and increase in need with aging population and increased technology will likely lead to further delays in some treatments and inability to do everything. On what legal basis should those decisions be evaluated?
Our sense of an inherent “liberty” interest in use and protection of our own bodies and health is supported in law. William Blackstone, the authority on the English common law sources of our constitutional rights cited repeatedly in Dobbs and many other cases, provided as much in his discussion of rights (including “privileges” and “immunities”) of individual persons: “Chapter 1, Of the Absolute Rights of Individuals . . . The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.”
Yet the majority in Dobbs not only ignored this history but must have rejected it. This sentence in Blackstone immediately precedes Blackstone’s statement the majority itself cited, that abortion of a quickened fetus (15 weeks or older) was a felony or misdemeanor. As I wrote about the leaked draft in Dobbs, an intellectually consistent opinion would have found a liberty right to abortion at least until 15 weeks (and to protect against possible maternal death), but the majority in Dobbs went the (unstated) religious route instead.
A brief explanation of constitutional analysis might help understand why. If a law applies to a “suspect classification” (e.g., race or religion) or a fundamental right (e.g., speech or privacy), a “rational basis” is not enough. The law must meet “strict scrutiny” – the government interest must be “compelling” (generally not just cost), and the law must achieve that interest as narrowly as possible (so that it doesn’t unnecessarily burden the protected person or right). The court in Roe found a compelling governmental interest (in restricting a woman’s privacy) only when the fetus was viable.
The court has found fundamental privacy rights in various Constitutional provisions, including the First, Fourth, Fifth and Ninth Amendments. Indeed, the Ninth Amendment was specifically designed in part as a directive to the court to protect “natural rights” such as privacy and bodily autonomy, undermining the majority’s view of textualism and originalism: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (emphasis added).
The majority in Dobbs could have recognized such a natural right of autonomy or privacy to make medical decisions, as the Kansas Supreme Court did in interpreting similar language in its constitution, a decision supported last week by referendum in Kansas. The court in Dobbs might have then asserted that a government’s compelling interest in protecting potential life arose much earlier than viability as found in Roe. But given Blackstone’s recognition of “quickening” as key in 1791 (when at least federal rights were set, by which Congress, if not the states, would be bound), that route would not logically eliminate all constitutional protection for abortion.
The question of total government control over healthcare may become a serious issue at some point far short of the dystopia of “The Handmaid’s Tale” (though the majority’s support of compelled pregnancy starts on that very road). As medical costs escalate, we, and courts, may have to make decisions about what services are covered, and about whether to allow private pay where public pay is unavailable.
These are important questions, and we should start from the premise that there is a fundamental – natural – right to be able to make those decisions about one’s own body, privately and in consultation with family and doctor, at least absent a compelling government interest to the contrary. Has the conservative majority on the court, ironically, passed control over healthcare to the government?
Andy Schatz is a retired lawyer who has served as the president of the American Civil Liberties Union of Connecticut and on the national ACLU Board and Executive Committee. The views expressed here are personal and do not represent those of any organization.