Any State May Now Constitutionally Limit Or Criminalize Any Medical Care For Anyone For Any Reason
States can now criminalize anything you may want to do that is not specifically protected in the Constitution
Because of the comments several readers made in connection with my two columns about the Supreme Court
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I felt compelled to write this column about what the Constitution is and how it was supposed to work to protect us from the potential tyranny of state as well as federal governments.
The Chains Of The Constitution
In 1798 Thomas Jefferson wrote, “. . . in questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”
Only 4,440 Words Written 231 Years Ago
As more and more centuries go by since 1791 (the year the Bill of Rights was ratified), as the population of the U.S. increases from the 5.3 million people in 1791 to the 330 million today, as technology progresses from wind-powered wooden ships and hand-written letters carried by riders on horseback to interplanetary space craft and world-wide wireless group communications, there are more and more laws and more and more government actions than could ever have been contemplated by Madison and Jefferson, leastwise could have been covered by the provisions of one short document of only 4,440 words.
The Supreme Court Does Not Make Laws — It Either Allows Or Cancels Laws Other People Made
The primary job of the Supreme Court is to decide if laws passed by a federal, state or local government forbid or require something that the constitution says that people have a right to do or a right not to do.
The Supreme Court examines laws legislatures have already made and decides if:
- Those laws violate or don’t violate the restrictions on government conduct imposed by the chains of the Constitution, or
- Some conduct by government agents violates or doesn’t violate the limitations on government actions imposed by the chains of the Constitution.
The Court either strikes down laws or forbids an action by the government as being prohibited by the chains of the Constitution, or it doesn’t strike down a law or it doesn’t forbid an action by the government because that law or action is not deemed to be prohibited by the chains of the Constitution.
The Supreme Court answers the question: “Is this law or government action allowed or prohibited by the Constitution?”
Why The Supreme Court Must Do This
The Supreme Court has to do this job because we cannot ignore making these decisions; Ignoring whether a law is valid is deciding that the law in question is valid, and ignoring whether the government can do something is deciding that the government can do that thing.
The Majority’s Logic In Dobbs
Understand that the majority in Dobbs v. Jackson Women’s Health Organization, the case overruling Roe v Wade, held that because the Constitution does not specifically mention any right to medical care, the Constitution does not prohibit the states from making any medical treatment or procedure — in the Dobbs case an abortion — illegal.
Please understand that this decision does not apply only to an abortion. It says that Americans have no constitutional right to medical care and that any state may constitutionally limit or criminalize any medical care for anyone for any reason.
Now that Dobbs allows states to constitutionally criminalize medical care, please consider the following potential state laws criminalizing which medical care can or cannot be rendered to that state’s citizens.
Criminalizing Treatment With A New Life-Saving Drug
Suppose that the FDA approves a life-saving drug that relieves the suffering from a serious, sometimes fatal disease.
A religious cult grows in a rural state. The cult leader decrees that the people suffering from this disease are sinners and should not be cured, but rather they should be left to suffer and die from this disease as their punishment for their wrongdoing.
Or, the cult leader thinks that the founder of the drug company is funding political candidates who oppose his religion and he wants to stop the sale of that drug to financially hurt that company.
Or, the drug was designed using research that was done on fetal tissue and therefore the religion deems the drug to be immoral. Or . . . whatever.
This religion has attracted enough money and enough members in this rural state to get the state government to pass a law making it a crime for any doctor to treat any patient with this drug.
A patient who will suffer terribly and then possibly die without the drug sues to have the law overturned on the grounds that the state government is denying him valid medical care and sentencing him to death just to make some religion happy.
Under the Dobbs decision, it is constitutional for this state, and perhaps eventually many other states as well, to make it a crime for doctors to save patients from terrible suffering and death because some religious leader with sufficient political influence dislikes the person who owns the company that manufactures the life-saving drug, or believes that the drug is evil, or because the rules of the religion decree that the people who have this disease are sinners who deserve to suffer and die.
Under Dobbs the constitution allows a state government to enact a law that makes it a crime for a doctor to treat sick people with a legal drug if enough voters in that state don’t like those sick people and want them to suffer.
And it doesn’t have to be a religion. It could be a corporation with an inferior competing drug or anyone else with an economic motive to want to suppress this drug.
All that matters is that someone with enough money and influence got the legislature to make this drug illegal and the people with that disease have no constitutional right to be treated with it. They are defenseless to this government action.
Making It A Crime To Give Penicillin To People With Venereal Disease
What if a religion that believes that sex is evil gets the state legislature to pass a law that says that it’s a crime for a doctor to give antibiotics to people with venereal disease because under the rules of that religion they are sinners who deserve to suffer?
Is a law criminalizing the medical treatment of people with VD because they are sinners in the eyes of the members of a religion constitutional?
Yes, Dobbs says, because the constitution says nothing about any right to medical treatment.
Criminalizing Organ Transplants For Certain People
Suppose a state decided that because there was a shortage of kidney donors that it should be illegal for the State University hospital (or for any hospital in the state) to perform a kidney transplant on anyone who
- Has not lived in the state for at least 5 years, or
- Hasn’t earned at least $50,000/year for three of the last five years, or
- Has been on any kind of state of federal public assistance any time in the last three years, or
- Hasn’t graduated from that State University, or
- Is over fifty years of age, or
- Hasn’t been a dues-paying member of
- — — Some church
- — — Political organization or
- — — Social Organization
— — for at least three years
Suppose the social organization that people wanting to get an organ transplant would have to join is The Sons & Daughters Of Our Great State and suppose that they almost never admit Jews or African Americans or atheists or homosexuals, so that the result of the law is that it is a crime for doctors to perform a kidney transplant on Jews or African Americans or atheists or homosexuals.
The Gov’t Is Now Free To Deny Access To Anything Not Mentioned in that 1791 4,440 Word Document
Because the Framers didn’t include in the Constitution a specific provision guaranteeing all citizens the right to board an airplane, ride public transit, use a cell phone, access the internet, not to have a police surveillance device placed on their car, or buy prescription drugs, under the interpretation of constitutionality used by the majority in Dobbs a state is free to limit or eliminate any of those things.
Does That Make Sense To You?
Is it that simple, that because doctors, organ transplants, medical treatments and prescription drugs were not mentioned in the Constitution that therefore the states should be free to make it a crime for doctors to treat people suffering from diseases that stem from conduct that some religion thinks is immoral or make it illegal to treat people who are old, poor, who didn’t graduate from a state college or who don’t belong to the “right” organization?
According to the reasoning in Dobbs, Yes.
Released From The Chains Of The Constitution
Are we going to live in a country where the daily risk to our freedom is:
- “Ooops, the Blah Blah Religion (or corporation) has taken over the statehouse so now women can’t wear pants in public or black people can’t sit in the front of the bus or people with VD can’t get penicillin”
because since the constitution doesn’t mention any of those things, the state governments have now been freed from the chains of the Constitution and are free to do any of them.
According to the majority in Dobbs, the states can constitutionally make anything illegal that is not specifically mentioned in the constitution as being protected.
How Might That Affect You?
Is that the America you want to live in, where any group that can get control of a state legislature or even a county government can make anything they want a crime so long as it’s something that isn’t specifically mentioned in the Constitution?
How free will you be if the government can arbitrarily deny certain people, unpopular people, people with the wrong ideas, the wrong religion, the wrong skin color access to the fundamentals of modern life because those modern inventions weren’t specifically mentioned in the 1791 constitution?
The answer is, “Not very.”
The great value of the Constitution is that it binds down the mischief of government with the chains of the Constitution, but when you exclude everything that has changed since 1791 from those chains, everything not specifically mentioned within those 4,440 words, you are allowing the state governments vast power to wreck your life in any way that some rich or popular or powerful church, political party, interest group or corporation that can gain influence over a majority of state legislators wants.
The Dobbs court has released all those governments from the chains of the Constitution and turned them loose to ravage whatever individuals or groups some church, political party, corporation or organization of true-believers may choose to punish any time they can manage to capture control of the levers of state or local government.
Be Careful What You Wish For
For all of you supporters of Dobbs, you need to consider all the damage those state and local governments can do to your rights, liberties and freedoms should somebody who doesn’t like you gets control of one or more of them.
Martin Niemöller was an enthusiastic supporter of the Third Reich, for a while. After WW II Niemoller wrote the following:
- First they came for the socialists, and I did not speak out — because I was not a socialist.
- Then they came for the trade unionists, and I did not speak out — because I was not a trade unionist.
- Then they came for the Jews, and I did not speak out — because I was not a Jew.
- Then they came for me — and there was no one left to speak for me.
You may think Dobbs is a win, but you’re trusting the government to always be on your side. Things change.
There may come a day when you will want your state government to be limited by the chains of the constitution, only to discover that Dobbs has released it from those restraints, and by that time there will be no one left to speak for you.