Health Care Reform and the Fourth Amendment

James A. Montanye

Sweeping statements of moral principle invariably create unintended consequences that

lead, in turn, to irreconcilable conflicts. The ‘moral imperative’ of health care reform, for
example, presently implies a foreseeable conflict with Fourth Amendment principles of liberty.
The Amendment, as written, protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, ... and no
Warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.”
With the medical cost of obesity approaching $200 billion annually, and the full
socialization of these costs being all but a formality at this juncture, the Supreme Court might
soon be obliged to decide whether the Amendment protects the right of the people to be as
secure in their refrigerators as they are in their papers and effects. Note well that
the Amendment’s framers contemplated neither refrigerators nor the social cost of obesity.
“We have seen more than once that the public welfare may call upon the best citizens for
their lives. It would be strange if it could not call upon those who already sap the strength of the
State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent
our being swamped with incompetence.” So opined the redoubtable Mr. Justice Oliver Wendell
Holmes, writing for the Supreme Court in the infamous case of Buck v. Bell (274 U.S. 200, 207
[1927]). Holmes’ decision upheld the Progressive eugenics program, which had blossomed to
include the involuntary sterilization of alleged imbeciles. Enthusiasm for the program waned
following the Nazi’s logical extension of the American plan. The reasoning of Buck v. Bell
nevertheless remains valid. It is especially apropos in situations where the costs of private
behavior are fully socialized as a matter of public policy. The projected cost of national health
care assurance (it is not insurance) implies that epicures and gourmands alike must be kept from
sapping the state’s financial strength. Legislative incompetence must, as always, be kept from
having the same effect.
Bold health care reform measures represent the thin edge of an unintended wedge. The
irreconcilable conflict between socialized health care expenditures and the nominal right of
individuals to be secure against government intrusion is amplified by the absence self-enforcing
mechanisms for optimizing both the total expenditure on health care and the private demand for
care. Coercive limitations on private behavior, complemented by draconian enforcement
methods, therefore are unavoidable lest the state’s fiscal resources be sapped by spiraling
expenditures. Searching for and seizing private cashes of ‘unhealthy’ foodstuffs, perhaps on
oath and affirmation that apparently overweight individuals inhabit a particular residence, become
rational weapons in the battle (dare we now call it a war?) to mitigate outlays. The evolution of
public enforcement tactics and methods is conspicuously predictable because the country has
been down the prohibition road before.
Many jurisdictions already have legislated crack-downs on restaurants that serve
normatively ‘unhealthy’ meals. The next foreseeable measures will target manufacturers and
stores that sell unhealthy foodstuffs. Black marketeers supplying close, albeit undoubtedly more
harmful, substitutes for banned comestibles also will be targeted for eradication, a campaign that
will create new dimensions of social cost. Enforcement ultimately must target consumers,
however, because the craving for salty, greasy, fatty, sugary food is instinctive and often
insatiable.
Americans have shown their willingness to exchange bits of their own liberty for allegedly
‘free’ health care services for themselves and their families. They evidently are less willing to
shoulder the enormous and growing cost burden of treating individuals who are indifferent about
their unhealthy lifestyles and resulting medical conditions. The liberty of indifferent (and
ultimately all) individuals is easily eroded in the name of social efficiency and expediency. A
brief campaign of public demonization and ridicule, followed by swift legislative action, usually
does the trick.
The irreconcilable conflict between socialized health care and individual liberty effects all
individuals through the loss of individual choice, increased public coercion, greater public
expenditure, and of course more public corruption. The occasional, televised glimpses of
overweight health care officials sneaking a Snickers between meals, and of corrupt legislators
being led on perp-walks for accepting excessive ‘contributions’ from snack food manufacturers,
will not compensate for the personal liberty that is being exchanged for the utopian, something-
for-nothing promises presently being offered by our noble, gracious, and oh so generous lords.