Health Care Reform And The Fourth Amendment

Health Care Reform and the Fourth Amendment James A. Montanye Sweeping statements of moral principle invariably create unintended consequences that lead, in turn, to irreconcilable conflicts. The ‘moral imperative’ of health care reform, for example, presently implies a foreseeable conflict with Fourth Amendment principles of liberty. The Amendment, as written, protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, ... and no Warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” With the medical cost of obesity approaching $200 billion annually, and the full socialization of these costs being all but a formality at this juncture, the Supreme Court might soon be obliged to decide whether the Amendment protects the right of the people to be as secure in their refrigerators as they are in their papers and effects. Note well that the Amendment’s framers contemplated neither refrigerators nor the social cost of obesity. “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.” So opined the redoubtable Mr. Justice Oliver Wendell Holmes, writing for the Supreme Court in the infamous case of Buck v. Bell (274 U.S. 200, 207 [1927]). Holmes’ decision upheld the Progressive eugenics program, which had blossomed to include the involuntary sterilization of alleged imbeciles. Enthusiasm for the program waned following the Nazi’s logical extension of the American plan. The reasoning of Buck v. Bell nevertheless remains valid. It is especially apropos in situations where the costs of private behavior are fully socialized as a matter of public policy. The projected cost of national health care assurance (it is not insurance) implies that epicures and gourmands alike must be kept from sapping the state’s financial strength. Legislative incompetence must, as always, be kept from having the same effect. Bold health care reform measures represent the thin edge of an unintended wedge. The irreconcilable conflict between socialized health care expenditures and the nominal right of individuals to be secure against government intrusion is amplified by the absence self-enforcing

mechanisms for optimizing both the total expenditure on health care and the private demand for care. Coercive limitations on private behavior, complemented by draconian enforcement methods, therefore are unavoidable lest the state’s fiscal resources be sapped by spiraling expenditures. Searching for and seizing private cashes of ‘unhealthy’ foodstuffs, perhaps on oath and affirmation that apparently overweight individuals inhabit a particular residence, become rational weapons in the battle (dare we now call it a war?) to mitigate outlays. The evolution of public enforcement tactics and methods is conspicuously predictable because the country has been down the prohibition road before. Many jurisdictions already have legislated crack-downs on restaurants that serve normatively ‘unhealthy’ meals. The next foreseeable measures will target manufacturers and stores that sell unhealthy foodstuffs. Black marketeers supplying close, albeit undoubtedly more harmful, substitutes for banned comestibles also will be targeted for eradication, a campaign that will create new dimensions of social cost. Enforcement ultimately must target consumers, however, because the craving for salty, greasy, fatty, sugary food is instinctive and often insatiable. Americans have shown their willingness to exchange bits of their own liberty for allegedly ‘free’ health care services for themselves and their families. They evidently are less willing to shoulder the enormous and growing cost burden of treating individuals who are indifferent about their unhealthy lifestyles and resulting medical conditions. The liberty of indifferent (and ultimately all) individuals is easily eroded in the name of social efficiency and expediency. A brief campaign of public demonization and ridicule, followed by swift legislative action, usually does the trick. The irreconcilable conflict between socialized health care and individual liberty effects all individuals through the loss of individual choice, increased public coercion, greater public expenditure, and of course more public corruption. The occasional, televised glimpses of overweight health care officials sneaking a Snickers between meals, and of corrupt legislators being led on perp-walks for accepting excessive ‘contributions’ from snack food manufacturers, will not compensate for the personal liberty that is being exchanged for the utopian, somethingfor-nothing promises presently being offered by our noble, gracious, and oh so generous lords.