Can States Make You Eat Broccoli?
Can the United States Congress employ an enhanced Commerce Clause authority to mandate expectant mothers undergo amniocentesis testing in order to identify and treat individuals, yet unborn, whose extraordinary medical expenses may someday be cost-shifted onto the society-at-large? To each of these questions, the state of Missouri answers “No.” Such federal authority would require a generalized police power or a separately enumerated power, but is not cognizable under the Commerce Clause.
I agree that the Constitution does not permit the Congress to enact such a law, but for reasons different than those articulated by the Attorney General of Missouri. Indeed, I believe the Attorney General's argument begs the question - does he believe a State could enact such a law? I believe neither a State nor the federal government could do so. The reason is that the constitutional right to privacy and liberty preclude such governmental action, absent a compelling state interest, whether the attempt is by a state government or a federal government. The question I have for the Missouri Attorney General is this - does he believe the State of Missouri has the power to effect such a law? More on the flip.
The "mandate you eat broccoli" argument made by the Missouri Attorney General has been offered more in passing than as a central point for the most part by those who advocate for the unconstitutionality of the the individual mandate provision of the Affordable Care Act (ACA). However, the Missouri Attorney General has made it a centerpiece:
[I]n Jacobson v. Massachusetts, 197 U.S. 11, 12 (1905), the Supreme Court endorsed the states’ use of police power to compel action to protect public health. The Court considered a Massachusetts law permitting a city to “require and enforce the vaccination and revaccination of all the inhabitants.” Id. at 12. The law penalized individuals $5 for refusing or neglecting to comply with the requirement. Id. Speaking for the Court, Justice Harlan invoked “[t]he authority of the state to enact this statute [under] the police power,–a power which the state did not surrender when becoming a member of the Union under the Constitution.” Id. at 24-25. The Court also “distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every description.’ ” Id. (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)).
>Jacobson, decided in 1905, would likely withstand constitutional scrutiny today, but the standard applied to determining its constitutionality would very likely be quite different. In Jacobson, the Court stated that:
Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution. Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the state to that end has no real or substantial relation to the protection of the public health and the public safety.
(Emphasis supplied.) The Jacobson Court applied what has come to be known as the "rational relation" test for determining the constitutionality of a government act. Since that time, in a series of decisions, the Supreme Court has heightened the level of scrutiny applied to government acts when privacy and liberty rights are implicated. From Meyer v. Nerbaska to Griswold v. Connecticut, the evolution of the standard to be met by governments in enacting laws that impinge on privacy and liberty rights has been transformed. In Planned Parenthood v. Casey, the Court stated that:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U. S., at 685. Our cases recognize "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, supra, at 453 (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.
[. . .] Roe [. . .] may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe's view that a State's interest in the protection of life falls short of justifyingany plenary override of individual liberty claims. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261,278 (1990); Cf., e.g., Riggins v. Nevada, 504 U.S. ____, ____ (1992) (slip. op., at 7); Washington v. Harper, 494 U.S. 210 (1990); see also, e.g., Rochin v. California, 342 U.S. 165 (1952); Jacobson v. Massachusetts, 197 U.S. 11, 24-30 (1905).
Accordingly, a government must demonstrate more than "rational relation" between its action and an identified policy goal, the Jacobson standard. It must demonstrate that the proposed impingement on the liberty and privacy interest does not impose an undue burden unsatisfied by an important interest of the government. This principle is exemplified in Cruzan v. Missouri, in which Chief Justice Rehnquist, writing for the Court, stated :
The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. In Jacobson v. Massachusetts, 197 U.S. 11, 2430 (1905), for instance, the Court balanced an individual's liberty interest in declining an unwanted smallpox vaccine against the State's interest in preventing disease. Decisions prior to the incorporation of the Fourth Amendment into the Fourteenth Amendment analyzed searches and seizures involving the body under the Due Process Clause and were thought to implicate substantial liberty interests. See, e.g., Breit haupt v. Abrams, 352 U.S. 432, 439 (1957) ("As against the right of an individual that his person be held inviolable ... must be set the interests of society...").
[. . .] But determining that a person has a "liberty interest" under the Due Process Clause does not end the inquiry; "whether respondent's constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests." Youngberg v. Romeo, 457 U.S. 307, 321 (1982). See also Mills v. Rogers, 457 U.S. 291, 299 (1982).
(Emphasis supplied.) While the Cruzan Court went on to hold that Missouri's actions were reasonable and did not unduly burden the privacy and liberty interests of the petitioners, it reaffirmed the rule that a government must do more than merely demonstrate a rational relation between its policy goal and its actions.
If the federal government, or the State of Missouri, attempted to regulate the medical treatment or the dietary habits of persons in the Nation or in the State of Missouri, either will need to demonstrate that the proposed action does not unduly burden the privacy and liberty rights of such persons.
A law to require the eating of broccoli would not likely pass muster in my opinion. Nor would a law requiring amniocentesis for pregnant women. The State police power does not insulate State action from this inquiry. And of course, neither does the federal Commerce Clause power.
Ironically, it is the conservative's much detested constitutional privacy and liberty right that protects them from such government "tyranny."
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