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Federal Judge Rules: No Constitutional Right

May 27, 1998

A recent decision by U.S. District Judge Thomas F. Hogan upheld the government's right to restrict your freedom to contract privately with your own physician. The case: United Seniors Association v. Donna Shalala, District Court for the District of Columbia (Civ. No. 97-3109, 4/14/98).

The Plaintiffs filed a lawsuit in federal court to stop Section 4507 of the Balanced Budget Act of 1997 from taking effect. This section pertains to Medicare, and says that any doctor who accepts private payment for Medicare-covered services must drop all Medicare patients for two years. The provision became law on January 1, 1998.

Federal Ruling

The Court decided against the United Seniors Association. In giving his opinion, Judge Hogan stated that "The Court does not pass judgment on Congress' wisdom in passing Section 4507; the Court's role here is solely to determine whether the United States Constitution confers a fundamental right on individuals to contract privately with their physicians. The Court finds that it does not."

The Judge further explained. "The Supreme Court has declined to extend the right to autonomous decision-making beyond certain limited contexts involving child rearing and education, family relationships, procreation, marriage, contraception and abortion.... This Court is not inclined to create new areas of constitutional protection.... Therefore, the Court finds that, on this record, Plaintiffs have not demonstrated that they have a constitutional right to contract privately with their physicians."

Concerned Judge

Although Judge Hogan refused to comment officially on Section 4507, he did express himself in a footnote to his decision. "The Court is concerned, however, that the regulations and interpretations by HCFA [Health Care Financing Agency--the government agency that runs Medicare] further limit patients' access to physicians of their own choosing."

Judge Hogan also cited data, again via footnote, that suggests seniors are effectively coerced into joining Medicare. "Medicare is, in effect, the only primary health insurance available to people over age 65. No private health insurance companies offer 'first dollar' insurance to this group [seniors]; they offer only supplemental insurance."

Your Money, Their Rules

One of the most important outcomes of Judge Hogan's ruling on Section 4507 of the Balanced Budget Act is this clarification: Once enrolled in Medicare, seniors must play by the government's rules.

Judge Hogan's clarification emphasizes that Congress has the right to set conditions for participation in federal programs, such as Medicare, as long as the following conditions are met:

(1) The government program must be in pursuit of the general welfare; in considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress;

(2) Congress must make any conditions on the receipt of federal funds clear, enabling participants to exercise their choice knowingly;

(3) Conditions on the receipt of funds must be related to the federal interests in particular national projects or programs; and

(4) Such conditions must not violate other constitutional provisions.

Richard Epstein of the University of Chicago Law School says "Judge Hogan's decision comes as no surprise given the current tenor of constitutional law, with its regrettable effort to distinguish between fundamental personal liberties and mere contract rights. But in truth any viable system of individual liberty must be seamless, for individuals can protect their choices on how to be treated only if they can choose who shall treat them. Right now Medicare is an omnivorous state monopoly. Judge Hogan's decision helps it drive all potential competitors away from offering their services to seniors."

Plaintiffs [United Seniors Association] are planning to appeal the ruling.

This article appeared in the May/June 1998 issue of Health Freedom Watch.