Legal Commentary

Obamacare Query: If There Is A Right To Refuse ...

Insofar as there is a right to refuse medical treatment, is there a corresponding right to refuse to pay for health insurance (or to be fined for not paying for health insurance) whose purpose is to pay for medical treatment?

The Supreme Court held in Cruzan v. Director, MDH, 497 U.S. 261 (1990), that ?[a] competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment,? although in some circumstances that interest can be overridden. ?The logical corollary of the doctrine of informed consent,? Chief Justice Rehnquist wrote, ?is that the patient generally possesses the right not to consent, that is, to refuse treatment.?

The Court?s opinion was praised E.J. Emanuel, Rahm?s brother and key player (as I discussed here) in the debate over ?death panels.?

Justice O?Connor, concurring, agreed ?that a protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions....? Justices Brennan, Marshall, and Blackmun dissented because they believed the Court did not go far enough in protecting what they regarded as a patient?s ?fundamental right? to reject unwanted treatment.

Now I?m sure that Cruzan is not the last word on this complex subject (suicide remains illegal, and the state certainly has a strong interest in preventing the spread of contagious diseases), but still: insofar as there is a right to refuse medical treatment, does Obamacare recognize any individual right to refuse to pay for insurance to cover the cost of medical treatment that a person has determined never to receive?

No doubt Obama?s friends in the insurance industry would love to receive forced premiums from people to whom they will never have to pay a dime.

Full post as published by Discriminations on April 22, 2010 (boomark / email).