Con Law 101

Least Restrive Means for a Compelling State Interest ... The Obamacare statute is under review by the Supreme Court this week. They have to identify some compelling state interest for the statute and whether it is the LEAST restrictive means of impinging on any constitutional competing rights- no question assisting in the best possible public health is a state interest but is that what it is doing and what are the means applied? Religious Freedom has been identified as one competing right. There may be others. Like the liberty interest generally in forcing anyone to buy something for nothing if they don't need the service. If they were just looking at the HHS authorization for imposing mandates on religious institutions (you would think this is the only thing they are looking at given the hullabaloo) then they would have to find a compelling state interest in providing birth control to all women and whether forcing religious schools to provide advertising to access for it is the least restrictive means. What is the state's interest in controlling births? For everyone?? The state does have an interest in preventing AIDS transmission but the rule doesn't speak to just condoms and oral contraceptions don't prevent AIDS. Does the state have some population control interest? Sure looks like they think they do but they weren't elected for that. Who else thinks that? What are other least restrictive means they could use to stop AIDS transmission? Enter John Stewart. They could provide condoms for free in dispensers in men's rooms paid for by the government. Some government AIDS service delivers boxes of condoms for government dispensers that are required to be placed in men's wash rooms on campus. The school can put a warning on the dispenser stating "The government and the Pope have determined that this prevents the transmission of AIDS but we don't think you should be needing it. If you drive recklessly buckle up for safety-it's the law. Cameras are monitoring who uses this and we will tell your Bishop" or something like that. Or, the machines could be installed next to a confessional with a sign "Before pressing the button please visit the booth to the left." or "Nice Girls don't let men drive drunk, but if you found a nasty mean one, wear a raincoat at your peril." Or- "if you think you are HIV positive get tested to be sure and if you insist on jeopardizing anyone pull the lever and call the school nurse." Obviously if someone knows that they are HIV positive they shouldn't be risking infection of any other student. It seems like with the insurance notification paid for by insurance accommodation they are searching for something least restrictive, however, it doesn't help the self-insurers. There seems to be in the HHS context zero attention paid to the non optional verses optional issue- as in sterilization. Is there a medical necessity clause?? Sterilization is necessary to avoid uterine cancer and death in the form of hysterectomies sometimes. That would be non optional. Having your tubes tied because you don't want more children is optional, not health mandated or necessary. There is obviously no compelling state interest in pushing things that are not medically necessary. Moreover there is no much less a compelling state interest in pushing things that can actually harm your health like oral contraceptions which are high risk drugs that have been identified as carcinogens. Should public health cover or does Obamacare make other people cover for other people's cosmetic surgeries? Nose jobs? Tummy tucks for too many trips to Taco Bell? How will/should the Supremes handle that? What is the compelling state interest in making sure all kids on any campus have the right to morning after pills when they should not have been fooling around in the first place and now know better? Isn't the compelling interest rather on the side of making sure kids know that they shouldn't be fooling around if they don't want to get pregnant? What about mandates in general. You want to cover everyone so everyone has to buy insurance from somewhere whether you can afford to or not or get fined?. It's like car insurance- exept it isn't. Because you cannot option not to drive your body. If car insurance is too expensive and you don't want to pay for it you can option not to drive or own a car. You don't have that option with your body. Non analogous. In a down market you are imposing another onerous cost on people whether they need the service or not. How does the Commerce Clause allow you to do that? If you were allowed to do that why didn't you just demand everyone buy a car instead of the 'cash for clunkers' program to spur on the auto industry? Is making everyone buy insurance the least restrictive means to people's freedom given that public health care likely is a compelling state interest? No, setting up government run clinics would be lesser restrictive-or just providing individual state funded insurance visa or debit cards and state funded insurance (federally funded), where instead of billions to the defense industry the government decided to fund health instead of war. That would be less restrictive than making everyone pony up on top of their tax bills. Some of the features publicized and touted as laudable about Obamacare are admirable indeed- portability, no preexisting conditions or discrimination against women (not sure if I ever had to pay more for any service because I was a woman and not sure what they are talking about) but the affordability isn't addressed when the costs aren't contained. So it didn't solve the major problem there. The question on everyone's mind is if the foundational mandate fails does the whole thing go down? Is it all premised on these mandates to underwrite the actually sick part of the population who need the medical treatment covered? Isnt that just the game to keep the private insurance companies profitable? And then there is that old buggaboo on the Commerce Clause problem- what is the limiting principle. If the government can do that, why can't the government tell you to buy CDs at the local bank to support the banking industry so they don't have to bail it out whether you can afford to or not? If the government can give billions and billions to bail out AIG and GM, why can't it fund medical clinics or just give everyone visas for medical costs, and if you dont need it you won't use it? I believe in public health. This particular method? Too many problems-It might be a good idea to send parts of it back to Congress for better consideration. For the veterans health bills, why don't we make the defense contractors underwrite it because they profited off the wars that disabled and sickened the veterans. While they profited, others lost their health. Just a thought-don't expect it to go anywhere. Can you see Boeing or Lockheed Martin setting up a Veterans' Disability Fund for medical treatments? Fundamentally I think our problem is a values problem where we have no problem paying for war but we have to gimmick the system to make it profitable for someone to pay for health. We don't just want a government dipping into its own coffers for health- but we pay an obscene fortune to defense contractors to fight wars. Public health should be that- not private insurance boondoggles by government rigging. The American people don't always win then. Only a select few do.