Wednesday, February 16, 2011

Expansion of the Government Provision of Health Care and Individual Rights: Panacea or Pandora’s Box?

“The proposal that promoting and protecting human rights is inextricably linked to the challenge of promoting and protecting health derives in part from ecognition that health and human rights are complementary approaches to the central problem of defending and advancing human well-being.” Jonathan Mann.

The Patient Protection and Affordable Care Act will create a much needed expansion of government supported health programs which will improve access to health care for many Americans. However, under current jurisprudence, if the policy makers who craft these new programs fail to proceed with great caution, the expansion of the government provision of health care could come at a significant cost to individual rights. Our country sits at a crossroads with the choice to either proceed to promote the health and well-being of the population while promoting and protecting individual rights or to enhance public health at the expense of these rights.

The threat to individual rights which lurks within the expansion of government supported health care programs originates with the body of jurisprudence built around Rust v. Sullivan. In Rust, the Supreme Court upheld legislation that barred health care providers who accepted government funds from engaging in abortion counseling, referral and activities. The Court held that:

[t]he Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program, which seeks to deal with the problem in another way. A legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right. There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.
This body of jurisprudence opens the door for programs like the one being pilot tested in West Virginia that I blogged on last week over at the Health Law Prof Blog. In early 2007, the federal government approved the West Virginia Pilot Project which provides health care for low-income, Medicaid beneficiaries. This program, and ones like it, is an attempt to respond to the ‘obesity crisis’ and the overall rise in health care costs. The West Virginia Pilot Project punishes those who do not join, and religiously adhere to, weight-loss or anti-smoking programs, or who otherwise fail to strictly comply with doctor's orders or to comply with government mandates. The punishment for this failure to conform is the denial of important medical services. A recent study of the program indicates that it is, in fact, negatively impacting access to health care. This type of paternalistic program violates the harm principle as it reaches out to broadly regulate the behavior of low-income individuals that is self-regarding; in other words, conduct that impacts only the individual. It is the first step on a slippery slope of potentially ever-expanding limitations on freedom of choice and individual rights, all in the name of public health.

Advances in genetic testing and in the science of pharmacogenomics that presage a new world of individualized medicine elevate the seriousness of this concern. Will this mean, for example, that a person with a particular genetic code must take a medication that pharmacogenomics dictates as the recommended treatment to ameliorate the condition and the long-term costs associated with treatment of the condition in order to qualify for future treatment of that medical condition? Taking this to the hypothetical extreme, what about a woman who has a BRACA-1 or 2 mutation with a very high probability of the future development of breast/ovarian cancer? Will she be forced to undergo surgical removal of her breasts and ovaries in her 20s in order to maintain her health care coverage and obtain treatment later in life if she contracts cancer? Is there a principled way to draw a line between what is acceptable regulation of self-regarding behavior with relation to health and what is not?

As we move forward to develop public health programs that deal with the rising cost of health care, it is hoped that we are able to design programs that seek to both promote public health while protecting individual rights. Cross posted at Health Law Prof Blog.



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