Part V. The Constitution Must Redress “The Tyranny of the Minority.” M4A as entry point.

Mike Magee

On June 24, 2022, a Supreme Court, dominated by five conservative Catholic-born Justices, in what experts declared “a historic and far-reaching decision,” Dobbs v. Jackson Women’s Health Organization, scuttled the half-century old right to abortion law, Roe v. Wade, writing that it had been “egregiously wrong,” “exceptionally weak” and “an abuse of judicial authority.”

Not content to allow the decision to stand alone, in a consenting opinion, Justice Clarence Thomas, a modern day version of Anthony Comstock, suggested that this was just the beginning. The decision, he said, was part of a the “legal rationale” that could allow new challenges to legalized gay marriage, consensual homosexual conduct, and access to contraception.

The reality is that decisions related to women’s reproductive rights are highly individualized, and remarkably complex. This is why we entrusted them to women themselves and their physicians in secure and confidential settings. Intrusion into this space by government fundamentally compromises women’s overall rights and autonomy, and triggers a broad range of Constitutional health concerns for the general public.

As Congressional health research consultant, Kathleen S. Swediman, wrote in 2010, “The health care reform debate raises many complex issues including those of coverage, accessibility, cost, accountability, and quality of health care. Underlying these policy considerations are issues regarding the status of health or health care as a moral, legal, or constitutional right…”

In 1994, Harvard professor Jonathan Mann stated, “Health is a fundamental human right indispensable for the exercise of other human rights.” Why?

Politically, he said “Health policies, programs, and practices have an affirmative impact on human rights, especially when state power is considered in the realm of public health.”

Discrimination is a factor as well. “Human rights violations have health impacts.”

Finally, he documents a propitious cycle. “Protection and promotion of human rights and health are linked fundamentally in a dynamic relationship.” Break one, most especially for women and children, and you break the other.

Rev. Martin Luther King Jr. acknowledged as much in 1968 when he said, “Of all the forms of inequality, injustice in health care is the most shocking and inhumane.”

Legal luminaries had already weighed in, sometimes with an edge. Georgetown’s Law Professor, Lawrence Gostin, in 1994, came as close as you could to the argument, “You got a better idea?”

He wrote: “Those who criticize all proposals for achieving universal coverage have the burden of stating what other value should take precedence, and make a reasoned case for their position.”

He penned those comments sixteen years before President Obama signed the Affordable Care Act Into Law in 2010.

The Republican argument against the ACA mandate (one of over 60 challenges) became the landmark case – National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). The argument for repeal of the mandate was based on the fact that the administration had justified the mandate (that those who refused to pay for health coverage would be required to pay a financial penalty) as constitutional based on the Article 1, Section 8, clause 3 Commerce Clause or Article 1, Section 8, clause 18 Necessary and Proper Clause.

On June 28, 2012, Chief Justice Roberts disappointed fellow Republicans with a complex decision that split the difference.

As he stated in his closing: “The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes (Article 1, Section 8, clause 1) on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.”

President Obama praised the decision, and House Speaker Nancy Pelosi remembered the lifelong campaign of Ted Kennedy, who had died of brain cancer 10 months earlier, stating that he could now “rest.” Despite Republican pledges to fight on, as the New York Times wrote that day this ruling “may secure Obama’s place in history.”

At the same time, the paper signaled a partial victory for conservatives and libertarians writing that, “The court’s ruling was the most significant federalism decision since the New Deal…that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want.”

By now, the Affordable Care Act had become a political weapon with which to bludgeon Democrats, and was a rallying cry for Donald Trump in his successful 2016 campaign for the Presidency. With the help of Senate Majority leader McConnell, Trump packed the Supreme Court with conservative Justices committed to over-turning Roe v. Wade. And they did just that.

It mattered little that the Executive Branch and the House of Representatives, along with 70% of American voters opposed messing with the legislation. If the goal of the Theocratic Conservative Justices was to turn back the clock of time, probe the weaknesses of our checks and balances, and stimulate a deep dive into Constitutional law, Dobbs v. Jackson was an enormous success.

So what have we learned?

The U.S. Constitution may be a living document, but as we recently witnessed, its capacity for movement is bi-directional. The Dobbs v. Jackson decision shifted our nation into reverse. In the process, it proved three important points:

Rights should never be taken for granted. They must be protected at every turn.
Health rights are central to human rights. Autonomy and self-determination are determinative of life, liberty, and the pursuit of happiness.
We are mutually inter-dependent. As FDR said, “Necessitous men are not free men.” If we wish to reject the “tyranny of the minority,” and rebuild a culture of compassion, understanding and partnership, (as we did with the Marshall Plan in Germany and Japan), we must redress the current injustices and begin anew with an equitable, just, and effective national health plan.