Proposed Wyoming Constitutional Amendment A

The third proposed Constitutional Amendment on the ballot this year, and the only one I haven't commented on so far, is Proposed Amendment A.  Here's the information, and my opinion (FWIW) on it:

Proposed Wyoming Constitutional Amendment A

Following is the ballot text language of Constitutional Amendment A as it will appear on the 2012 General Election ballot:

The adoption of this amendment will provide that the right to make health care decisions is reserved to the citizens of the state of Wyoming. It permits any person to pay and any health care provider to receive direct payment for services. The amendment permits the legislature to place reasonable and necessary restrictions on health care consistent with the purposes of the Wyoming Constitution and provides that this state shall act to preserve these rights from undue governmental infringement.

The actual text of the amendment states:

Article 1, Section 38. Right of health care access.

(a) Each competent adult shall have the right to make his or her own health care decisions. The parent, guardian or legal representative of any other natural person shall have the right to make health care decisions for that person.
(b) Any person may pay, and a health care provider may accept, direct payment for health care without imposition of penalties or fines for doing so.
(c) The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.
(d) The state of Wyoming shall act to preserve these rights from undue governmental infringement.

First of all I'd note that I find it a little aggravating, and slightly insulting, that the system in Wyoming provides that a synopsis, but not the entire text, of a proposed amendment is printed on the ballot.  The voters, unless they take the time to look things up, don't really know what text they're voting on, but rather are voting on a synopsis that was put together by somebody.  Granted, the synopsis is generally pretty darned good, but nobody really knows what an amendment to the constitution means until the Wyoming Supreme Court interprets the statute. That's just the way it is, and is not any sort of a criticism.  There's always a lot of commentary on "judge made law", but having an independent judiciary is what makes any real legal system function in a trustworthy and legitimate manner.  Given that, the voters ought to be able to actually read the text they are voting on.

Okay, on to this proposed amendment then.  I gave the thumbs up to the two other amendments that are on the ballot this year, Proposed Amendment B on the right to hunt, fish, and trap and Proposed Amendment C, allowing for greater use of Court Commissioners.  But this amendment, even though I sympathize with its underlying motives, will not achieve what it is silently intended to do.  And what its intended to do is to take on the Federal Patient Protection and Affordable Care Act which critics have labeled "Obamacare", after the President, it's principal backer.

There are plenty of reasons to criticize the PPCA, with freedom of conscience aspects being the most prevalent.  And that's the reason that this Wyoming Statute states:

Any person may pay, and a health care provider may accept, direct payment for health care without imposition of penalties or fines for doing so.

This provision is designed to try to defeat any Federal mandates on how health care services are paid for, with the implicit concept that the Federal statute might impact this. The thought is that this provision will allow a person to pay for their own health care without being covered by the Federal provisions.

The problem with this concept is that it achieves absolutely nothing in the face of a contrary Federal statute.  I'm frankly not familiar enough with the PPCA to know whether or not it mandates that all health care payments be made by the patient themselves.  I doubt that it provides such a provision, quite frankly.  It is the case, of course, that the Federal statute provides that every individual, with some exceptions, must be covered by a private policy of insurance, the fallback Federal one, or pay a fine for failing to do so.  The fine was the provision that figured in the recent United States Supreme Court decision upholding the PPCA.  Chief Justice Roberts, in a decision what I believe is a plurality decision, held that the fine is a tax, and therefore Constitutional.

Federal laws can absolutely abrogate the contrary provisions of State Constitutions under the Supremacy Clause of the U.S. Constitution, so to the extent that this attempts to defeat the "fine" provision of the PPCA, it will not.  In effect, if that's the goal, this Constitutional amendment would be stillborn upon passage.  That wouldn't mean that the amendment wouldn't otherwise be effective, where not contrary to Federal law, but it's difficult to see where it would be contrary to Federal law.

The final section of the proposed amendment requires Wyoming to file suit or join suits to protect the provisions of the amendment, where it states:

The state of Wyoming shall act to preserve these rights from undue governmental infringement.

Here, "undue governmental infringement" should be read "undue Federal infringement" as it would be bizarre in the extreme to imagine the Legislature passing a bill that infringes, and the Governor signing it, and then the Attorney General of Wyoming filing suit.  Obviously, that's not what was meant, although you can create interesting scenarios where successive state administrations might dislike an earlier bill, or perhaps the state might go after a county for something.  For example, what if a County Health Department acted in a way that frustrated the act?  The state would then have to sue.  Interesting, but unlikely.

In actuality, this provision was no doubt intended to authorize Wyoming to join the suits that were then taking on the PPCA, which the State already had the authority to do, but which it wasn't mandated to do. This would have mandated it.  As it happened, the State did join the suits and the whole matter has now been up to the Supreme Court.  So that won't do much.

So what would this Amendment do?  Well, not very much.  It would establish what is already the law in that it is already the case that "Each competent adult shall have the right to make his or her own health care decisions. The parent, guardian or legal representative of any other natural person shall have the right to make health care decisions for that person."  This is already the way the law works, but this makes what is already the law a Constitutionally protected right.  That may be a good thing, but it also might open up strange potentialities that are not intended.  At best, it would protect what everyone generally desires. At worst, it might give Constitutional protection to actions and procedures that many people now, or in the future, might find abhorrent.  That is, a "competent adult", in the eyes of the law, might wish for procedures that most or some might find questionable.  Of course, that is already the case now.  But what if, for example, a "competent" person argued that he wished to be euthanized?  Would this provision make that a  Constitutionally enshrined right?

The last section of the proposed amendment is probably designed to prevent things like that from occurring.  It states:

The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.

The problem is however, that in providing an escape clause, the amendment nearly guts any protection it affords. That is the legislature provides that a person's right to make his or her own health care decisions is protected, while at the same time stating that the legislature may make reasonable and necessary restrictions on that right.

Of course, the legislature, under this proposed amendment, is limited to "reasonable and necessary restrictions", which means it can't do anything it wants in terms of restricting a person's health care rights. But that's arguably already the case.  And what is "reasonable and necessary" is left open for interpretation.  Would this bill prohibit, for example, the legislature continuing to outlaw euthanasia?  Most Wyomingites would not want euthanasia legalized, but this provision would cause any restrictions on it to be subject to a "reasonable and necessary" standard, perhaps.  That might be an area that most people don't want to go to, and it is likely not even close to the intent that the legislature had in mind.

For all of these reasons, while I'm still pondering this amendment, I find it to be very problematic.  It seems well situated to do none of what it intends to do, and to create questions that it does not mean to create, and which most people do not want raised.