Whether the states can and will sue the federal government on Constitutional grounds really doesn't matter as any person adversely affected by this
law, and by that I mean any person held to answer for or pay a fine or submit to imprisonment for failure to comply with the law, has right to sue the
federal government for a redress of grievances as well and the obvious remedy is to strike the law down as unconstitutional. The SCOTUS has a long
history of upholding a persons right to self determination and particularly when it comes to making private medical decisions. Consider just one of
these rulings with Cruzan v. Director, MDH, 497 U.S. 261 (1990)
The beautiful irony of this ruling is that SCOTUS can sometimes seem ambivalent, or inconsistent about the right to self determination, but that
inconsistency arises when the Court defers to states rights, yet in this ruling they are both upholding the states rights and individuals rights in
the same ruling. Here are the facts of that case:
Karen Cruzan, following an automobile accident, sustained injuries that left her what is called a "persistent vegetative state", and therefore
legally incompetent to make any decisions for herself. The state had been bearing the cost for her care and when the Karen's parents requested that
her life support system be removed, the doctors, nurses and staff of the hospital keeping Karen alive refused to do so. Karen's parents sued to have
the life support system withdrawn and a state trial court authorized the termination of life support, finding that a person has a fundamental right,
under both federal and state constitutions to direct or refuse the withdrawal of a life support system, and the fact that Cruzan had expressed to a
former housemate that this would be their wish in the event such circumstances occurred.
The case was taken to a higher court and the State Supreme Court reversed the trial court decision. While the State Supreme Court also recognized the
refuse treatment, as embodied in the common law doctrine of informed consent, the State Supreme Court held that such law was not applicable in this
This State Court did, however, decline to read into the State constitution the expressed right to privacy and its broad nature, which would imply an
unrestricted right to refuse treatment, and also questioned whether the federal Constitution embodied such as right. They instead reasoned that the
Living Will statutes of that state, strongly favored the preservation of life, as well as holding that Cruzon's statements to her housemate were
unreliable for the purpose of determining her intent. The State Court also rejected the argument that the parents were entitled to order the
termination, declaring that no person can presume the right of authority over an incompetent persons right to choice, absent any formality required by
statute or compelling evidence that it is the choice of the incompetent being carried out by the parents.
This ruling eventually went to The Supreme Court, while affirming the State Supreme Court's holding, here is what The SCOTUS held:
1. The United States Constitution does not forbid Missouri to require that evidence of an incompetent's wishes as to the withdrawal of
life-sustaining treatment be proved by clear and convincing evidence.
Cruzan v. Director MDH; Pp. 269-285. [497 U.S. 261, 262]
Here The SCOTUS is upholding states rights, by asserting that the state is not forbidden by The United States Constitution to require compelling
evidence to end an incompetent persons life. The right to life and the preservation of that life is what is first and foremost the concern. Both
state and federal Supreme Courts agree on this.
(a) Most state courts have based a right to refuse treatment on the common law right to informed consent, see, e.g., In re Storar, 52 N.Y.2d 363, 438
N.Y.S.2d 266, 420 N.E.2d 64, or on both that right and a constitutional privacy right, see, e.g., Superintendent of Belchertown State School v.
Saikewicz, 373 Mass. 728, 370 N.E.2d 417. In addition to relying on state constitutions and the common law, state courts have also turned to state
statutes for guidance, see, e.g., Conservatorship of Drabick, 200 Cal.App. 3d 185, 245 Cal.Rptr. 840. However, these sources are not available to this
Court, where the question is simply whether the Federal Constitution prohibits Missouri from choosing the rule of law which it did.
Here The SCOTUS makes clear that however The Missouri State Supreme Court came by their determinations is their concern, and is distinguished from the
SCOTUS ruling which makes its own determinations. The importance in this is in what follows:
(b) A competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment. Cf., e.g., Jacobson v.
Massachusetts, 197 U.S. 11, 24 -30. However, the question whether that constitutional right has been violated must be determined by balancing the
liberty interest against relevant state interests. For purposes of this case, it is assumed that a competent person would have a constitutionally
protected right to refuse lifesaving hydration and nutrition. This does not mean that an incompetent person should possess the same right, since such
a person is unable to make an informed and voluntary choice to exercise that hypothetical right or any other right. While Missouri has in effect
recognized that, under certain circumstances, a surrogate may act for the patient in electing to withdraw hydration and nutrition and thus cause
death, it has established a procedural safeguard to assure that the surrogate's action conforms as best it may to the wishes expressed by the patient
So, while The SCOTUS is upholding states rights and affirming The Missouri State Supreme Courts ruling, they are making the clear distinction that on
the matter of a competent persons right to refuse unwanted medical treatment, this is a basic right protected by The Due Process Clause, holding that
such a right did not necessarily exist for an incompetent person, since they are unable to make any informed consent or refusal, but that Missouri's
requirement of complying with procedural safeguards before terminating the life of an incompetent was what was affirmed.
The ruling is well worth reading and it seems to me that if a persons right refuse medical treatment is upheld as a right protected by Constitution,
then certainly the right to refuse health insurance is just as protected.