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ACLU Joins Fight for Seniors' Health Freedom

October 27, 1998

The American Civil Liberties Union of the National Capital Area (ACLU) has joined ten other organizations in the fight to protect the right of senior citizens to contract privately for Medicare-covered services. The coalition has filed an Amicus (friend of the court) brief in support of the United Seniors Association's (USA) federal lawsuit to preserve that fundamental right.

The 300,000-member local affiliate of the ACLU signed on to the Amicus brief because, according to court documents, it "views a person's right of autonomy regarding the care and treatment of his or her own body as an important aspect of civil liberties."

"This is very good news for freedom fighters," said Libby Wright, director of health and science at Citizens Against Government Waste (CAGW), a member of the coalition. "Senior citizens should not be denied the right to use their own money to purchase health services, whether the services are covered by Medicare or not. We are pleased that ACLU has joined us in this fight for seniors' freedom."

The Lawsuit

The lawsuit, United Seniors Association v. Shalala, was filed in federal court in Washington, D.C. on December 30, 1997. It initially sought a temporary restraining order to stop Section 4507 of the Balanced Budget Act of 1997 from taking effect. That section says that any doctor who accepts private payment for Medicare-covered services must stop seeing all Medicare patients for two years.

After a March 6 hearing, U.S. District Judge Thomas F. Hogan dismissed the suit. Judge Hogan ruled that if Medicare pays, then you must play by their rules. USA appealed on June 30. A three-judge panel will begin hearing arguments this fall.

Who's Fighting the Medicare Law?

All told, the eleven-member coalition represents millions of Americans from diverse backgrounds. The 600,000-member CAGW spearheaded the filing of the Amicus brief. According to a document it filed in the U.S. Court of Appeals for the District of Columbia, a CAGW member was refused medical treatment while on vacation due to "the new government policy on Medicare."

Additionally, CAGW has obtained 65,000 signatures supporting repeal of Section 4507. "CAGW and its members believe that senior citizens are knowledgeable consumers who are capable of making their own health care purchasing decisions without government interference," the organization said in its court filing.

Another Supporter of the Suit

The Atlantic Legal Foundation (ALF), a nonprofit public-interest legal foundation, has also joined in the Amicus brief. ALF has a particularly strong interest in the case because a member of its legal advisory council was denied medical care under the new law. Justice Lee Loevinger, a former associate justice of the Supreme Court of Minnesota, Commissioner of the Federal Communications Commission, and assistant attorney general of the United States, was refused a tetanus injection at an emergency room during treatment for a severe laceration. "The emergency room personnel explained that Medicare might deem the injection unnecessary and would then refuse reimbursement. When Justice Loevinger offered to pay for the injection with his own funds, he was informed that under Medicare, the hospital could not allow him to make personal payment for treatment," ALF reports.

Role for the Courts or Congress?

It is clear that Section 4507 violates fundamental civil liberties. However, the courts could rule that since Congress created the Medicare restriction, it is up to that branch to repeal it. In that case, Americans might want to consider who was responsible for this truly un-American law and demand immediate corrective action.

This article was originally published in the September/October 1998 issue of Health Freedom Watch.

 
"A former associate justice of the Supreme Court of Minnesota was refused a tetanus injection at an emergency room during treatment for a severe laceration. The emergency room personnel explained that Medicare might deem the injection unnecessary and would then refuse reimbursement. When Justice Loevinger offered to pay for the injection with his own funds, he was informed that under Medicare, the hospital could not allow him to make personal payment for treatment."