Justice Douglass’ 1973 Opinion concurring in Roe vs Wade. An Amicus against Tyranny and the ACA Health Care Mandate
Title: Freedom and The National Healthcare Debate. By James K. Hahn 2/13/2013 and prior.
While I can demonstrate that Roe was rooted in an unprovable negative presumption regarding the presence of life in the fetus and therefore flawed, never the less the comments he (Justice Douglass) made in his concurring statement support the liberties and authorities of the individual over the mandates of the State regarding health care. I am bringing this to the attention of anyone that feels a compelling interest in the truth. The people, and that means all of us, you included, must stand up and make our voices heard or we deserve the consequences of our silence. Silence is, after all, consent. Sorry if I seem so strident. But we the people must retrieve the powers we have bestowed upon the Government by our own “consent” or suffer the consequences. The temptation is to think “TOO LATE”. And you may be right. But we must try. History is not on our side. No democratic republic has ever existed much beyond 200 years. They all permitted the same things we have allowed to happen and fell to a dictator as a consequence. This is the price of abandoning our responsibilities and personal authority as citizens.
Perhaps the best arguments against the validity of the so-called Affordable Health Care Act can be found in the language of a prior Supreme Court ruling in 1973 by Justice Douglass, concurring in that decision. That decision, with some irony, was Roe vs Wade.
Roe was founded on the false absurd and unprovable negative presumption that life was not present in the unborn individual until it was somehow spontaneously “acquired” at “about” the “24th to 28th” week of whatever was happening in the womb during that period of non-living activity. The fact that nothing happens in the absence of process and no alternative to the possibility of the life process being the responsible culprit seemed beyond the capacity of the Court to explain.
Howsoever, the review of the decision by Douglass clearly identified the rights and privileges upheld and defended by several of the Amendments of the Bill of Rights contained in the Constitution and were meant to restrain governing bodies from infringing on these rights either in toto or only by very narrowly drawn regulations confined to the legitimate interests of the State and specific to those interests. The rights of the individual to have presiding control and privacy over those decisions belonged to the individual and his or her appointed health care providers and not to any other person or group of persons not expressly authorized by the knowing consent and authority of the attended client or patient.
The following statements from Justice Douglass pertain:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of “the Blessings of Liberty” mentioned in the preamble to the Constitution. Many of them, in my view, come [410 U.S. 211] within the meaning of the term “liberty” as used in the Fourteenth Amendment. First is the autonomous control over the development and expression of one’s intellect, interests, tastes, and personality.
These are rights protected by the First Amendment and, in my view, they are absolute, permitting of no exceptions.
The Free Exercise Clause of the First Amendment is one facet of this constitutional right. The right to remain silent as respects one’s own beliefs, Watkins v. United States, 354 U.S. 178, 196-199, is protected by the First and the Fifth.
All of these aspects of the right of privacy are rights “retained by the people” in the meaning of the Ninth Amendment.
Second is freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.
These rights, unlike those protected by the First Amendment, are subject to some control by the police power. Thus, the Fourth Amendment speaks only of “unreasonable searches and seizures” and of “probable cause.” These rights are “fundamental,” and we have held that, in order to support legislative action, the statute must be narrowly and precisely drawn, and that a “compelling state interest” must be shown in support of the limitation.
If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person
This right of privacy was called by Mr. Justice Brandeis the right “to be let alone.” Olmstead v. United States, 277 U.S. 438, 478 (dissenting opinion). That right includes the privilege of an individual to plan his own affairs, for, “‘outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.'” Kent v. Dulles, 357 U.S. 116, 126.
Third is the freedom to care for one’s health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.
These rights, though fundamental, are likewise subject to regulation on a showing of “compelling state interest.” We stated in Papachristou v. City of Jacksonville, 405 U.S. 156, 164, that walking, strolling, and wandering “are historically part of the amenities of life as we have known them.” As stated in Jacobson v. Massachusetts, 197 U.S. 11, 29:
“There is, of course, a sphere within which the individual may assert the supremacy of his own will [410 U.S. 214] and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will.”
In Union Pacific R. Co. v. Botsford, 141 U.S. 250, 252, the Court said, “The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow.”
the Court, in speaking of the Fourth Amendment stated, “This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.”
Katz v. United States, 389 U.S. 347, 350, emphasizes that the Fourth Amendment “protects individual privacy against certain kinds of governmental intrusion.”
In Meyer v. Nebraska, 262 U.S. 390, 399, the Court said:
“Without doubt, [liberty] denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship.
It is one thing for a patient to agree that her physician may consult with another physician about her case. It is quite a different matter for the State compulsorily to impose on that physician-patient relationship another layer or, as in this case, still a third layer of physicians. The right of privacy — the right to care for one’s health and person and to seek out a physician of one’s own choice protected by the Fourteenth Amendment — becomes only a matter of theory, not a reality, when a “multiple physician approval” system is mandated by the State.
Crucial here, however, is state-imposed control over the medical decision whether pregnancy should be interrupted. The good faith decision of the patient’s chosen physician is overridden and the final decision passed on to others in whose selection the patient has no part. This is a total destruction of the right of privacy between physician and patient and the intimacy of relation which that entails.
The right to seek advice on one’s health and the right to place reliance on the physician of one’s choice are [410 U.S. 220] basic to Fourteenth Amendment values. We deal with fundamental rights and liberties, which, as already noted, can be contained or controlled only by discretely drawn legislation that preserves the “liberty” and regulates only those phases of the problem of compelling legislative concern. The imposition by the State of group controls over the physician-patient relationship is not made on any medical procedure apart from abortion, no matter how dangerous the medical step may be. The oversight imposed on the physician and patient in abortion cases denies them their “liberty,” viz., their right of privacy, without any compelling, discernible state interest.
I also agree that the superstructure of medical supervision which Georgia has erected violates the patient’s right of privacy inherent in her choice of her own physician.
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