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This article is part of the State Status and News series related to the Patient Protection and Affordable Care Act.

Rather than sound all “doom and gloom” about the health care bill for a third straight week, I decided to go in a different direction, and actually attempt to apply the current health care situation with the law of the land, something I’m supposed to do in this column.

Be that as it may, I know I laid this out for you, my dear readers, a few months ago, but now it seems as though my prediction, while not entirely accurate, will serve as a pretty decent baseline for what will happen next.


But the most interesting strategy I can see on the horizon, is the myriad of lawsuits that are going to be filed in federal court regarding this very issue. Already, a number of state attorneys general have announced that they will be filing suit on behalf of their respective states, claiming that the bill violates the constitution. There will also be, no doubt, a number of other suits that are fashioned the same way.

Remember, the Supreme Court of the United States has three tests that it uses to determine whether a government program or law is constitutional: the rational basis test, the intermediate test and strict scrutiny.

Regardless of how the Democrats position this matter, I would have to feel that universal health care is not a constitutional right. Thus, strict scrutiny should be taken out of the mix. Similarly, it would appear that this is not exactly the issue for rational basis. The government is going to have to show more compelling evidence to the court than “my constituents wanted this program, or I heard a story about someone who died once that didn’t have health care.”

So, it would appear, through my cunning process of elimination, that intermediate scrutiny will likely be used. Therefore, the court will have to figure out just how much health care is a constitutional right (if any), and whether the government (read: the legislature) has any business getting into the healthcare business. Expect fireworks to ensue.

As I’ve said previously, I am not opposed to health care reform. However, this whole process smacks of politics and, as we like to say in the legal business, throwing stuff at the wall to see what sticks.


Markham, Christopher. “On health care, a little less doom and more perspective”. (Frederick, Maryland) Frederick News-Post (Opinion). April 19, 2010. Available online as of 2010-04-19.