Federal Judge Rules:
No Constitutional Right
May 27, 1998
A recent decision by U.S. District Judge Thomas F.
Hogan upheld the government's right to restrict your
freedom to contract privately with your own physician.
The case: United Seniors Association v. Donna Shalala,
District Court for the District of Columbia (Civ. No.
The Plaintiffs filed a lawsuit in federal court to
stop Section 4507 of the Balanced Budget Act of 1997
from taking effect. This section pertains to Medicare,
and says that any doctor who accepts private payment
for Medicare-covered services must drop all Medicare
patients for two years. The provision became law on
January 1, 1998.
The Court decided against the United Seniors Association.
In giving his opinion, Judge Hogan stated that "The
Court does not pass judgment on Congress' wisdom in
passing Section 4507; the Court's role here is solely
to determine whether the United States Constitution
confers a fundamental right on individuals to contract
privately with their physicians. The Court finds that
it does not."
The Judge further explained. "The Supreme Court has
declined to extend the right to autonomous decision-making
beyond certain limited contexts involving child rearing
and education, family relationships, procreation, marriage,
contraception and abortion.... This Court is not inclined
to create new areas of constitutional protection....
Therefore, the Court finds that, on this record, Plaintiffs
have not demonstrated that they have a constitutional
right to contract privately with their physicians."
Although Judge Hogan refused to comment officially
on Section 4507, he did express himself in a footnote
to his decision. "The Court is concerned, however, that
the regulations and interpretations by HCFA [Health
Care Financing Agency--the government agency that runs
Medicare] further limit patients' access to physicians
of their own choosing."
Judge Hogan also cited data, again via footnote, that
suggests seniors are effectively coerced into joining
Medicare. "Medicare is, in effect, the only primary
health insurance available to people over age 65. No
private health insurance companies offer 'first dollar'
insurance to this group [seniors]; they offer only supplemental
Your Money, Their Rules
One of the most important outcomes of Judge Hogan's
ruling on Section 4507 of the Balanced Budget Act is
this clarification: Once enrolled in Medicare, seniors
must play by the government's rules.
Judge Hogan's clarification emphasizes that Congress
has the right to set conditions for participation in
federal programs, such as Medicare, as long as the following
conditions are met:
(1) The government program must be in pursuit of the
general welfare; in considering whether a particular
expenditure is intended to serve general public purposes,
courts should defer substantially to the judgment of
(2) Congress must make any conditions on the receipt
of federal funds clear, enabling participants to exercise
their choice knowingly;
(3) Conditions on the receipt of funds must be related
to the federal interests in particular national projects
or programs; and
(4) Such conditions must not violate other constitutional
Richard Epstein of the University of Chicago Law School
says "Judge Hogan's decision comes as no surprise given
the current tenor of constitutional law, with its regrettable
effort to distinguish between fundamental personal liberties
and mere contract rights. But in truth any viable system
of individual liberty must be seamless, for individuals
can protect their choices on how to be treated only
if they can choose who shall treat them. Right now Medicare
is an omnivorous state monopoly. Judge Hogan's decision
helps it drive all potential competitors away from offering
their services to seniors."
Plaintiffs [United Seniors Association] are planning
to appeal the ruling.
This article appeared in the May/June 1998 issue
of Health Freedom Watch.