Laura Ingraham Interview with David Rivkin – August 23, 2009
Ingraham: [to David Rivkin] I read your piece in the Wall Street Journal about the individual’s right to privacy and the right to privacy as first conceived under the Griswold case, in 1965. How does this ruling end up butting up against this end-of-life counseling?
Rivkin: It’s ironic, isn’t it? You and I do not like this privacy case. It went on to Roe, Casey, and Carhart; but, basically it’s well-established now that the government cannot impact the decisions, cannot significantly burden a person’s ability to operate within the zone of physical and spiritual autonomy. Sounds silly, but that’s more-or-less a paraphrase from the Carhart decision. These decisions are between you and your physicians.
Therefore, if fairly modest restrictions in abortion, like mandatory waiting periods or parental consent, are burdening your ability to obtain access to abortion, then having the government impact how the “end of life counseling” is given is necessary.
Think about it: The government cannot require you to have health care. If the government cannot prevent you from having an abortion, how can the government prevent you or burden your ability to obtain a kidney transplant? It is absolutely apparent to me that this line of cases cannot be reconciled with governmental rationing. Now, you can say to me that there is some sort of rationing being done by private insurance companies who may refuse to approve what they call “experimental procedures.” We must remember that these companies are not entirely subject to the Constitutional requirements to the same degree as our federal government.
Ingraham: What are we going to do when old people have to sit down and talk about these “end of life” requirements? It seems like the very fact that this process exists is coercive.
Rivkin: It is coercive. Technically, it’s true, they are not mandated. A) The Physicians have an incentive to do that; B) If they operate in a resource-constrained environment, a number of physicians will want to steer the elderly patients in the direction of not using heroic measures. Remember, especially for all of the old folks living alone, with their children gone, who is the most consequential person of authority? The physician. This is certainly an inherently coercive atmosphere.
Again, the government is infusing its power in this environment. What’s amazing to me is that, looking at leftist comments post-911, we see that the left is distrustful of our government listening to our conversations or prying into our emails. But, isn’t it funny that these same people are not at all concerned with the government controlling a life or death decision?
Ingraham: I agree that there is no consistency in the way the left looks at issues. They claim to be tolerant of viewpoints, but they try to shut down debates. I like how in your Journal piece, you quoted from the Planned Parenthood VS. Casey abortion case where Anthony Kennedy flipped his vote and gave the court a 5-4 majority vote, upholding Roe vs. Wade. I liked the quote you took from the case which said, “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14th amendment. At the heart of that liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life.” Right now I like the Casey case. I am only kidding; I actually despise the Casey case, but this language seems like it would be able to shut down any attempt to shove Obamacare down our throats.
Rivkin: Absolutely, I’m chuckling because this has been widely ridiculed by a high-faluting conservative mindset which is certainly not based on anything in the constitution. This line of cases has been extremely entrenched.
And again, just to point back to undue burden, you don’t even need to wait until you get to a single-payer system where the government is in a position to ration care directly. Under the significant burden approach, if the government kills, or substantially impairs, the ability to purchase private insurance, that is a significant burden.
Even if you can pay for your own medical bills, how many people can walk into the hospital and throw down a couple hundred thousand dollars? Not being able to attain insurance is a significant burden, and it is a far more significant burden than some of the attenuated state regulations that have been struck down in the context of abortion cases.
Ingraham: Just to inform everyone: Undue Burden came from the Roe vs. Wade type cases, which were establishing a right to abortions without undue regulations created by the government.
I want to talk about the Commerce Clause application. How is this implicated?
Rivkin: We are now talking about the Individual Purchase Mandate. This is the idea that everybody, including young folks, will be required to buy heath insurance. It is really a generational subsidy; the young would finance the old.
What I argue is that the commerce clause cannot support this mandate. The Commerce Clause is a key element of Congressional powers. The framers intended the Federal Government, unlike the State Government, to be one of limited enumerated powers. And Congress has a few well defined powers, and how to regulate instrumentalities of commerce is one of them. What I argue here is that, for the first time in American history, the government is now regulating people as commerce. This is fundamentally unconstitutional. Therefore, the key element of the healthcare reform package is unconstitutional.
Ingraham: I hope that there will be an early opportunity for challenging this. How would the Constitutionality of this be challenged in court?
Rivkin: It’s simple. Let’s say this thing passes. I hope it will not. Let’s say you were forced to purchase healthcare. You go to District Court and challenge it as an unconstitutional provision. This would happen as soon as the statute passes. You do not need to wait.
Ingraham: Sounds like Congress has forgotten the constitution. We are out of time. Thanks, David.
For more information and other interviews, visit davidrivkin.com