Challenging ObamaCare on the right to privacy

When the various states filed suit against the federal government over the constitutionality of the Patient Protection and Affordable Care Act, pejoratively known as ObamaCare, they listed as grounds for action the 10th Amendment and the Commerce Clause.

The 10th reserves rights not granted to Congress to the states and the people, so the suing attorneys general argued health care is not enumerated in the Constitution and is therefore the realm of the states. The Commerce Clause allows Congress to regulate commerce among the states, so they argued that failing to buy insurance is not commerce, and certainly not interstate commerce.

Nevada is one of the states suing. When Democratic Attorney General Catherine Cortez Masto refused Republican Gov. Jim Gibbons' demand that she file suit on behalf of the state, the governor obtained private legal counsel to file for the state.

On Tuesday, a Las Vegas lawyer filed a lawsuit in Nevada's federal court challenging the health care reform act on those grounds and several others that strike at the heart of constitutional protections. One of his grounds is a fundamental right found nowhere in the Constitution, but one that has been extrapolated to exist over the past century by Supreme Court justices and legal scholars.

That is the right to privacy.

The lawsuit was filed by Independent American Party attorney general candidate Joel Hansen on behalf of his political party, the groups People v. U.S. and Nevada Eagle Forum, as well a number of individual political activists. The plaintiffs include the president, the United States of America, the U.S. Department of Health and Human Services and several ranking government officials.

ObamaCare mandates everyone purchase "qualified" health insurance or pay a fine called a "shared responsibility payment." Hansen estimates the fine would amount to nearly $4,000 by the year 2020 for his plaintiffs. Like the states in their lawsuit, Hansen argues this is a constitutionally prohibited capitation or direct tax.

Where Hansen leaps out from the conventional arguments is in the realm of privacy -- by pointing out that in order to obtain the required private health insurance under duress of threatened fine, one must reveal private, personal information through urine and blood samples, DNA and the results of mental and physical examinations.

Hansen cited numerous court cases on this point, including Roe v. Wade, which found a privacy right to abortion that the states could not contravene. "Thus, if a choice is sufficiently private or personal, the Courts must recognize the right as implicit in the concept of ordered liberty. The decision not to divulge medical confidences to a private insurer or its agents to obtain health insurance; not to receive medical treatment or treatment of a particular kind; and not to pay for unwanted treatments are private and personal choices," he writes.

According to Seth Lipsky's "The Citizen's Constitution: An Annotated Guide," the Supreme Court found the privacy right in the 14th Amendment Due Process clause, which bars states from depriving any person of "life, liberty, or property, without due process of law."

Liberty equals privacy.

Lipsky quotes Justice Sandra Day O'Connor in a case that followed Roe and solidified it. O'Connor wrote, "The controlling word in the case before us is 'liberty.' Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years … the Clause has been understood to contain a substantive component as well, one 'barring certain government actions regardless of the fairness of the procedures used to implement them' …

"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."

Hansen's lawsuit also made a First Amendment argument, saying ObamaCare violates the protection for freedom of association by compelling membership in a "qualified" private health insurance plan.

He quoted case law stating "freedom of association plainly presupposes a freedom not to associate."

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and a free society. He may be contacted at 383-0261 or via e-mail at Read his blog at