In the 2011 Legislative Session, the 61st Wyoming Legislature passed a referendum to amend the Wyoming Constitution known as the Health Care Freedom Amendment (“HCFA”). The amendment will be placed on the ballot in the 2012 general election, and if ratified will provide strong protection of individual liberty. The HCFA would codify a legal basis upon which to challenge the Patient Protection and Affordable Care Act (“PPACA”), but it is just as important for the protections it would secure from state government.
The HCFA’s challenge against the federal PPACA combines a number of judicial threads to weave a strong tie of freedom. The first thread is “Incorporation,” i.e., federal enforcement of the individual rights contained in the Bill of Rights against state and local governments. Building on this, we look to Judicial Federalism. This doctrine originally focused on making state constitutions more protective of the rights described within the federal Bill of Rights, but has expanded to include rights that are only recognized in state constitutions. When a state provides more protection for a federal constitutional right, there is no ground to appeal a state constitutional question to the United States Supreme Court. These traditions must be considered in light of the Ninth and Tenth Amendments to the United States Constitution, which provide that the Bill of Rights is not the end-all be-all of individual rights; citizens need not amend the U.S. Constitution in order to protect individual rights within their own state. These three threads, combined with the HCFA, should protect an individual’s health care choices from both federal and state infringements.
Section (a) of the Wyoming HCFA protects health care decisions. Because this applies to the purchase of health insurance, it directly opposes the PPACA individual mandate, and pro-tects the use of new innovative treatments, alternative medicine, and other procedures that may provide a cure. This section also solidifies the right to refuse treatment. Section (b) of the HCFA prohibits restrictions on direct payment and acceptance of direct payment for care. Section (c) reserves to the Wyoming Legislature the ability to restrict health care decisions in reasonable and necessary ways that protect both the health and general welfare of the people. These might include requiring certain immunizations in the event of an outbreak of a disease, restricting recreational drugs, restricting assisted sui-cide and, if Roe v. Wade is ever overturned, further restricting or banning abortion. Finally, section (d) of the HCFA requires the Wyoming government to pursue policies that will buttress health care freedom rather than whittle it away and gives standing to the Wyoming Attorney General to defend individuals and the state from federal incur-sions into health care freedom.
Whether or not the PPACA remains in effect, the HCFA is a necessary addition to the Wyoming Constitution. In the continuing struggle between individual liberty and government power, a ratified HCFA would paint a line that government cannot cross. The HCFA would require government to formulate policies that respect health care freedom. Such policies have the potential to lower costs and increase the effectiveness of Wyoming’s health care system as individuals select and purchase the care they want. If the HCFA is ratified, it will be a first step on the road to market-driven health care; its language securing our fundamental right to make our own health care deci-sions will ensure that journey starts off on the right foot.