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Is ObamaCare the End of Roe v. Wade?

The president's health-care proposals target the right to privacy -- as Sen. Arlen Specter very well knows.

By 6.30.09

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Is ObamaCare poised to extinguish Roe v. Wade?

Talk about the law of unintended consequences.

Stated or unstated, a driving force behind modern liberalism takes root in the 1973 Supreme Court decision Roe v. Wade, in which abortion was legalized. The Court found a "right to privacy" guaranteed by the due process clause of the 14th Amendment, saying that a woman had a constitutional right to abort her child up until the "point at which the fetus becomes viable." The Court quite specifically defined viability as the point at which a fetus is "potentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."

Quite aside from the political acrimony the Roe decision has generated from the day it was issued, the hot debate over President Obama's health care proposal alters the abortion debate in a fashion quite unintended. If passed, ObamaCare could instantly set up a legal confrontation between the principle behind President's health care system -- and the principle undergirding Roe v. Wade. Which in turn would launch a political battle royal between proponents of government health care and abortion rights.

Why?

A reading of the Roe decision leaves no doubt whatsoever of what abortion advocates have claimed ever since the opinion was handed down. To quote the Supreme Court decision directly:

We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life.

If, as Roe clearly states, "the State does have an important and legitimate interest in preserving and protecting the health [emphasis mine] of the pregnant woman" -- why doesn't it have "an important and legitimate interest" in protecting the health of the rest us?

Like, say, the President's own late grandmother? Or U.S. Senator Arlen Specter? Or you?

According to the President himself in his recent health-care infomercial with ABC News, his late grandmother was "somebody who contracted what was diagnosed as terminal cancer. There was unanimity about that. They expected that she'd have six to nine months to live. She fell and broke her hip. And then the question was, does she get hip replacement surgery, even though she was fragile enough that they weren't sure how long she would last, whether she could get through the surgery."

Stop the tape.

What if the diagnosis of his grandmother's terminal cancer had been wrong?

The U.S. Senate's newest Democrat, Pennsylvania's Arlen Specter, has vividly written of his own diagnosis with Hodgkin's disease, Stage IVB. Specter's doctor informed him that he should get his affairs in order because his time was short -- Specter was going to die and soon. A stunned Specter decided instead to get a second opinion. By his own account, this decision saved his life and (to the irritation of all sorts of people in both parties) Arlen Specter is still here years later famously running for re-election on the cusp of 80. This was not the case of Obama's grandmother, but a misdiagnosis like Specter's is something that happens all across America every day.

If you don't think so, just check in with those longtime stalwarts of the modern Democratic Party -- medical malpractice lawyers. Indeed, a random visit to the website of lawyers advertising their services as medical malpractice attorneys highlights the fact in detail. Their practice is based on patients who have received a "misdiagnosis" from a physician. Specifically, the law practice seeks clients who have received a misdiagnosis for heart attacks, stroke, and cancer. In the case of cancer patients who have been misdiagnosed, the list of misdiagnosed diseases handled is quite specific: "Breast Cancer, Cervical Cancer, Prostate Cancer, Colon/Rectal Cancer, Skin Cancer." Also listed is "Prenatal Misdiagnosis" resulting in "Cystic Fibrosis, Down Syndrome, Fragile X Syndrome, Sickle Cell Disease, Spina Bifida/Neural Tube Defects, Thalassemia."

Got that?

It is the self-appointed job of these entrepreneurial lawyers to go to every length available to prove the doctor in question simply didn't do enough to correctly diagnose and correctly treat the diseases listed by the lawyers themselves. The lawyers are thus at one with patients who believe (as did Arlen Specter) that one more test, one more opinion correctly done -- a second or third or a fourth -- is the one that would have resulted in eventually restoring the patient to health. A health that Roe v. Wade quite specifically says is "an important and legitimate interest" of the State.

Yet here is the President on ABC (with anchor Charlie Gibson) responding to the notion at the very core of the medical malpractice profession and, indeed, of most Americans: that Americans want the freedom -- indeed have the right -- to seek the best health care that exists for themselves and their families. Says the President in the transcript provided by ABC News:

OBAMA: I think families all across America are going through decisions like that all the time. And you're absolutely right that, if it's my family member, it's my wife, if it's my children, if it's my grandmother, I always want them to get the very best care. But here's the problem that we have in our current health care system, is that there is a whole bunch of care that's being provided that every study, every bit of evidence that we have indicates may not be making us healthier.

GIBSON: But you don't know what that test is.

OBAMA: Well, oftentimes we do, though. There are going to be situations where there are going to be disagreements among experts, but often times we do know what makes sense and what doesn't.

Let's parse. The "problem" says the President, "is that there is a whole bunch of care that's being provided that every study, every bit of evidence that we have indicates may not be making us healthier."

In other words, the President has just said it that his health care plan, what we will call here ObamaCare, intends to insert a third party -- the government -- between you and your doctor. Why? Because the President, a third party, believes "a whole bunch of care...may not be making us healthier." This is in direct conflict with Roe, which says:

The right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

A "woman" as defined in Roe is a person, as in someone who, along with all other Americans of both genders, is entitled to "the Ninth Amendment's reservation of rights to the people" and the 14th Amendment's "concept of personal liberty." She may be pregnant, something not doable for men, but that both men and women are "people" is not in dispute. And whatever else one may say of abortion, it is precisely a medical procedure just as everything from brain surgery to stitches.

According to the principle laid down in Roe, every American (except, of course, the unborn) has the constitutionally protected right to have our health care decided on by ourselves and our doctors, without disapproving courts, legislatures, presidents or health care bureaucrats getting in the way. (In the case of Roe, the third party was the state of Texas.) Roe specifically forbids third parties interfering in the patient-doctor relationship. To say, as the President has said, that "every study, every bit of evidence" produced by some third party (an ObamaCare medical bureaucrat, for example) is somehow relevant to the treatment of a patient -- and that it will be mandatory to heed -- is a direct contravention of the two-party patient-doctor relationship legalized by Roe on the grounds of "personal liberty" and the "right to privacy." The President's ambition is simply to insert the federal government into the role played by the state of Texas in the original Roe decision.

Roe is quite specific as well that "the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman." In that one partial sentence every American becomes a pregnant woman, their health protected for the same reason as the pregnant woman's -- because the Court found a constitutional protection that does so. If there's any doubt about the sacredness Roe attaches to this principle, which in political and constitutional shorthand has become known as "the right to privacy," Roe restates it a second way. The State, says Roe, has still another "important and legitimate interest in protecting the potentiality of human life." Which it proceeded, to much controversy, to define as the "point at which the fetus becomes viable."

So in ruling out the unviable life -- the fetus -- as worthy of protection, the Court left no doubt whatsoever that "viable" human beings must be protected as the State has a "legitimate interest in protecting the potentiality of human life."

Read those phrases again: "viable" and "protecting the potentiality of human life."

If you are reading this, you are a "viable" human being as specifically defined by Roe v. Wade. If you have plans for five minutes from now, we are talking about your potentiality for human life.

Whatever else is said about Roe and the argument over the unborn, there is not the slightest doubt whatsoever that the born -- until their last breath is drawn -- meet exactly Roe's standard of "the potentiality of human life." Your beloved spouse, parent, child, relative, friend has at the minimum a potential for something as long as they live. That something could be a Michael Jackson-style 50-concert extravaganza or your 90-year-old mother bringing joy to life by simply holding your hand. Both are physical manifestations of the "potentiality of human life" as specifically defined by Roe. The much publicized exertions to save Michael Jackson are emblematic of the point, and in fact such ministrations go on all across America every single minute of the day. The entire point of frantic efforts to save a life -- Michael Jackson's, yours, your spouse's or the life of someone you have never heard of -- is because of the fundamental belief in that person's "potentiality" in human life.

As long as that question can be answered with any response that implies breathing by a born human, it is very clear that Roe, citing the 14th and 9th Amendments, protects not just the health of a woman but the health of us all. It gives every American with a beating heart a "right to privacy" to make exactly the medical choices they wish to make with their own bodies. Or, in the blunt words of a feminist blogger (the bloggers stylistic phrasing and caps included) over at one very typical liberal site called progressivesonline.com:

Keep Your Hands Off My Body!

I'll make it simple for everyone.

MY BODY belongs to ME

I make decisions alone (or with the help of my family, my doctor, my God) for MY BODY

KEEP YOUR GOVERNMENT HANDS OFF MY BODY!

OK, then! Are we clear?

Well, apparently the President is not.

When it comes to the Roe v. Wade principle that the progressivesonline blogger has stated -- "I make decisions alone (or with the help of my family, my doctor, my God) for MY BODY. KEEP YOUR GOVERNMENT HANDS OFF MY BODY!" -- the President tells Charlie Gibson "that there is a whole bunch of care that's being provided that every study, every bit of evidence that we have indicates may not be making us healthier."

In discussing care for seniors, the president is even more explicit: He says that people not of your choosing (Government bureaucrats) "one way or another" are going to be making decisions about your body.

Meaning, contrary to the constitutional language of Roe and the more colorful lingo over at progressivesonline, Obama feels third party "evidence" from "every study" is more important in deciding what goes on with your body than the rights liberals insist have been granted by Roe. This "evidence" in turn is what Obama is using to justify the presence of a Third Party empowered to step between you and your doctor. A Third Party of government bureaucrats authorized to put their medical hands on your body or, notably, to refuse to do so because they -- not your doctor -- have judged you to be too old, too sick or too something else that is not convenient to their system. Not to mention a third party that gets to decide when and at what cost to do or not do. The State of Texas lives, this time as the Obama Administration.

The progressive feminist blogger and her pro-choice friends are being informed by Barack Obama that when it comes to Roe v. Wade versus Obama's desire to have government bureaucrats deciding who puts whose hands on whose bodies, well, Roe loses. "A woman's right to choose" is now made legally vulnerable by the demand of the Obama Administration that, in fact, one does not have any right at all to choose whose hands are going on one's body or what those hands will do once there. In the President's words, (bolded emphasis mine):

"But what we can do is make sure that at least some of the waste that exists in the system that's not making anybody's mom better, that is loading up on additional tests or additional drugs that the evidence shows is not necessarily going to improve care, that at least we can let doctors know and your mom know that, you know what? Maybe this isn't going to help. Maybe you're better off not having the surgery, but taking the painkiller."

Again, let's parse. Let's translate.

"We" means a third party -- the federal government in this case. The State of Texas in the original Roe case.

"Make sure" means that third party is going to tell you and your doctor what the two of you can or cannot do -- the principle specifically rejected in Roe.

"..that's not making anybody's mom better" means a third party is issuing a judgment that may or may not be shared by you and your doctor -- or another and another doctor if you choose to go that route. Remember Arlen Specter's rejection of this principle, choosing instead to get a second opinion his own cancer diagnosis -- and saving his life because he did so.

"….that is loading up on additional tests or additional drugs that the evidence shows is not necessarily going to improve care" again implies third party interference in the patient-doctor relationship, deliberate government interference in the "right to privacy" found by Roe.

"…we can let doctors know and your Mom know…" means a third party -- in direct violation of the right to privacy stated by Roe will be informing both your doctor and you what is and is not permissible. This was, of course, exactly the position of the state of Texas in Roe -- letting Jane Roe "know" what was and was not permissible with her body in a medical procedure. Texas said no to her abortion. The Supreme Court said yes.

• And last but not least, the President said: "Maybe this isn't going to help. Maybe you're better off not having the surgery, but taking the painkiller." In other words, not only has the President inserted a third party into your relationship with your doctor, you must now do what that third party -- the government -- tells you to do. Just as the government of Texas was insisting to Jane Roe that, in the President's words, "maybe you're better off not having the surgery."

What does all this mean? It means there will be trouble -- big trouble -- between Obama and a core constituency of his political base when realization dawns on the pro-choice movement about what ObamaCare could do to Roe. Either Roe wins -- or ObamaCare wins. The principles behind each cannot exist in the same universe. One of them must lose.

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About the Author
Jeffrey Lord is a former Reagan White House political director and author. He writes from Pennsylvania at jlpa1@aol.com.