Is access to health care a fundamental right?

Posted by AzBlueMeanie:

Is access to health care a fundamental right expressly or implicity guaranteed by the U.S. Constitution?

Short answer: No. And neither is a public education, I would hasten to add.

There are two types of governmental action which will cause the U.S. Supreme Court to depart from its usual "rational basis scrutiny" standard of review under the Equal Protection Clause of the 14th Amendment: when a group burdened by the classification is "suspect" (e.g., a racial or ethnic minority, women, aliens) or when the classification burdens what the Court has determined to be a "fundamental right" expressly or implicitly guaranteed by the U.S. Constitution.

The Supreme Court has recognized a relatively short list of "fundamental rights" that triggers their "heightened scrutiny" standard of review. Heightened scutiny has been limited to cases involving substantial burdens placed on the right to vote, the right to be a candidate (access to the ballot), the right to migrate to another state (interstate travel), the right to marry* and procreate and parental rights in a family unit, and to fees that prevent indigents from obtaining equal access to justice (e.g, divorcing, maintaining parental rights, and obtaining transcripts and securing legal assistance for a criminal appeal).

* The Supreme Court struck down Virginia's anti-miscegenation statute (the Racial Integrity Act of 1924) barring inter-racial marriage in Loving v. Virginia (1967). Whether the "fundamental right" to marry will be extended to same-sex marriages now that several states legally recognize and license same-sex marriages remains to be seen.

A divided Supreme Court on several occasions ruled that a public education is not a "fundamental right" guaranteed by the U.S. Constitution. (The Arizona Constitution, however, contains numerous provisions providing for a "nearly free" public education; not that these provisions are enforced by our courts).

It is far more likely than not that the current conservative activist Supreme Court would reject a claim that access to health care is a "fundamental right," perhaps relying on its public education case precedents. Both Justices Antonin Scalia and Clarence Thomas have made speeches before friendly conservative audiences in recent years in which they have expressed their views that Americans "have too many rights." THE FREEDOM BEAT: JUSTICE THOMAS THINKS AMERICANS HAVE TOO MANY RIGHTS:

The event, on March 31, [2009], was devoted to the Bill of Rights, but Justice Thomas did not embrace the document, and he proposed a couple of alternatives.

"Today there is much focus on our rights," Justice Thomas said. "Indeed, I think there is a proliferation of rights."

"I am often surprised by the virtual nobility that seems to be accorded those with grievances," he said. "Shouldn't there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?"

Given the forseeeable ruling by the current conservative activist Supreme Court, Congress, in the exercise of its legislative powers and prerogatives, may preemptively preclude such a ruling with some solid statutory drafting. Congress may declare in the preamble clause of any health care reform act that its purpose and intent is to secure the "fundamental right" of access to health care. This language should be repeated in several of the substantive provisions of the health care reform act as well.

In particular, in the enforcement and remedies provisions of the health care reform act the Congress should spell out in clear and unambiguous language that access to health care is a "fundamental right" and the courts shall apply the "heightened scrutiny" standard of review in any legal proceedings.

It would be beneficial if several members of Congress in their prepared comments to be included in the Congressional Record expressly address the "fundamental right" to access to health care and the "heightened scrutiny" standard of review in legal proceedings so that there will be a congressional record of the purpose and intent of the Congress in enacting these statutory provisions.

Contact your congressional members and let them know that you demand these critical provisions be included in any health care reform act.