April 13, 2010

Obamacare and Privacy Rights

The first private lawsuit has been filed challenging the constitutionality of Obamacare. In addition to the general arguments against Obamacare, i.e. Commerce Clause objection, it brings up the privacy issue inherent in turning over one's medical information to an insurer.
You still have to give a big, scary, mean corporation a lot of private medical and psychological information about yourself and your family. Then, forever after, the insurance corporation’s bureaucrats will gather this private information without even bothering to let you know. As our Complaint states:
Moreover, compelling Plaintiffs to enter into a private contract to purchase insurance from another entity will legally require them to share private and personal information with the contracting party. Specifically, by requiring Plaintiffs to abide by the Act’s individual mandate, Congress is also compelling Plaintiffs to fully disclose past medical conditions, habits and behaviors. Not only will the insurer be privy to all past medical information, Congress’s individual mandate will, by necessity, allow the compelled insurer access to Plaintiffs’ present and future medical information of a confidential nature. If judicially enforceable privacy rights mean anything, then private and confidential medical details certainly merit Constitutional protection. Plaintiffs should not be forced to disclose the most intimate details of their past, present and future medical information.
Do you have an STD? How many abortions have you had? How about a sexual dysfunction? Did your
father or mother have cancer? Do you have a birth defect? Have you ever been prescribed drugs for a mental condition, such as anxiety or depression? There are many reasons people have concerns over their medical privacy. The desire to keep one’s medical history private is universal.
I think this is an interesting angle that perhaps has more legs than other arguments for the reasons that Michael Barone points out in the column linked below. At the very least, I would love to see the liberal Justices uphold the mandate and attempt to square the privacy concerns inherent in the individual mandate with Roe and its progeny. Should make for some entertaining mental gymnastics.

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