How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Timothy D. Smith Your Own Question

Timothy D. Smith
Timothy D. Smith, Attorney
Category: Legal
Satisfied Customers: 1967
Experience:  10 years practicing IP law and general litigation
12711280
Type Your Legal Question Here...
Timothy D. Smith is online now
A new question is answered every 9 seconds

Your opinion. RE: The Affordable Care Act. In his 1973 Decision

Customer Question

Your opinion. RE: The Affordable Care Act. In his 1973 Decision concurring with Roe v Wade Justice Douglass stated that any act or law or regulation that interfered with the "sacrosanct" Dr.-Patient relationship between the Dr. and the Patient must be very narrowly written and specifically describing the compelling interest of the State in doing so. Did Kathleen Sibelius act illegally when she denied the right of a child to receive a life saving procedure needed at the direction of her doctors? RE: the juvenile needing a lung transplant to treat her Cystic Fibrosis and forestall her otherwise imminent death. Was this a violation, according to Justice Douglass' opinion, of her 14th amendment rights? Thank you, XXXXX XXXXX Hahn, Wilmington, NC.
Submitted: 10 months ago.
Category: Legal
Expert:  Timothy D. Smith replied 10 months ago.

Dr. Hahn, I hope this message finds you well and I appreciate the opportunity to discuss this matter with you. It is my legal opinion that this was a 14th amendment violation based on the specific language that you cite.

 

As you are aware, the 14th amendment can be legally trumped or set aside in certain matters (as stated above) when there is a compelling state interest. So, what is a compelling state interest? In Howe v. Brown, 319 F. Supp. 862 (N.D. Ohio 1970), it was held that, the compelling-state-interest-test is mostly applied in all voting rights cases and equal protection cases. It is also applied when a disputed law requires strict scrutiny. While the Courts have never set forth a bright line on how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. National security, public safety and the lives of more than one person are generally considered to be compelling state interest issues.

 

In my professional legal opinion as well as my personal opinion, the actions of Sibelius infringed on this girl's 14th amendment rights without question. I fail to see any arguments to the contrary as a matter of fact that have any real significance.

 

In medico-legal circles, there are a number of other constitutional issues that are being presented by the ACA.

 

The first and most obvious relates to Judge Roberts determination that the ACA is a tax and therefore constitutional. As you know, a tax must originate in the House. While the ACA bill by number did originate in the House, the entire substance and effect of the bill is from the Senate. As such, if the ACA is to be construed as a tax (the individual mandate more precisely) then is should have emanated from the House in substance. That was not the case. I understand that there is at least one law suit that is making its way through the federal court system that is attempting to make this point. In fact, there is a school of thought that this has been Roberts' intent all along.

 

On that same topic, forcing an individual to purchase health insurance could arguably violate or infringe the Commerce Clause, the Takings Clause, the Presentment Clause (9th Amendment and 10th Amendment).

 

The federal government (HHS) having the ability to access your bank account through the ACA arguably violates the 4th and 5th amendments and infringes upon your right to be secure in your person, papers, and effects, as do unreasonable searches into personal health insurance records.

 

Excessive fines, in the form of the ACA penalty, violate the Constitutional promise contained in the words "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (8th Amendment) The violation stems not only from the penalty, but also from mandating private citizens purchase health insurance.

 

The contraception mandates could arguably violate the 1st Amendment freedom of religion.

 

In summary, and as to your immediate question, the answer is yes, in my opinion, this was a violation of this little girl's 14th amendment rights. I anticipate these violations to continue undeterred unless or until there is Supreme Court jurisprudence in place to curtail such infringements. As you can see above, and as you likely knew already, there are numerous other questionable infringing components of the ACA.

 

The scary thing is that the regulations and regulatory authority granted under the ACA will actually spawn more Constitutional infringements in all likelihood without the strict attention that would otherwise be present in congress.

 

I suspect that what was attempted relative to this girl will become even more present (and was a test run either consciously or subconsciously) for life and death decisions that will inevitably be necessary for end of life treatment for patients on under government care as the baby-boomers continue to age. We have seen it in other nations and we will see it here too. I recently read that Americans normally generate more medical billing in their last year of life than all other years combined. This will have to be addressed as more people inevitably end up on the government ticket and one could surmise that Sibelius may take similar measures on them as well.

 

Let me know if you have any additional questions or comments. It is certainly an interesting topic for discussion.

 

Best wishes going forward!

Timothy D. Smith, Attorney
Category: Legal
Satisfied Customers: 1967
Experience: 10 years practicing IP law and general litigation
Timothy D. Smith and 19 other Legal Specialists are ready to help you
Customer: replied 10 months ago.

Hi Tim. Dr. James Hahn here.


 


It appears that the private insurance carriers are purging themselves of all patients in order to eliminate those who are becoming more expensive to keep on their books. This could lead, at least temporarily, to the collapse of the private carriers. It's too early to tell, but they may just be waiting to go back in as the system implodes and then cherry pick the healthy survivors, so to speak. Same song, different verse. They are certainly rushing for the exits. What are your thots on what's happening? Would like to stay on top of this issue if you want to continue corresponding. All my best, good luck to us all. We're going to need a lot of it. James.

Expert:  Timothy D. Smith replied 10 months ago.

Great to hear from you Dr. Hahn. I think you are exactly right. Moreover, the ACA's "success" is predicated on young, healthy people signing up during this open enrollment to effectively subsidize the older population that will also be mandated to have health insurance and cover costs.

 

At the moment, due to a poorly designed and critically flawed on-line system, as well as based on the obvious premise that just because you mandate something doesn't mean people can afford it, the numbers of new enrollees nationally is well below the projected number.

 

This will cause what people are calling a death spiral for the entire system that could bring down insurance companies with it.

 

Here are two related articles just this week on the subject:

 

http://finance.yahoo.com/blogs/daily-ticker/obamacare-deadline-delayed-beware-insurance-death-spiral-says-155612417.html

 

http://www.bloomberg.com/news/2013-10-21/is-obamacare-in-a-death-spiral-.html

 

The second article mentions this being a worst case scenario for the insurance marketplace.

 

We are already starting to see concierge medical clinics sprouting up in my area of the country that are cash only or subscription only. The people with money will continue to have access to quality care...those that do not (which is most the country) will see decreased access, lower standards of care and an inability to pay for that care.

 

This is another article on the topic of the death spiral from the insurance journal:

 

http://www.insurancejournal.com/news/national/2013/10/23/308964.htm

 

It is quite amazing the forethought of our founding fathers in drafting a constitution that knew implicitly that when the government overstepped its bounds, that massive problems would ensue.

 

That is what we are seeing at the moment and I am not sure how we get the train back on the tracks at this point barring a miracle.

 

Keep in touch... I love hearing your perspective (and am jealous of your location).

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    19941
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    8189
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/jespoag/2008-12-17_222355_jessepic.jpg JPEsq's Avatar

    JPEsq

    Attorney

    Satisfied Customers:

    2132
    Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor
  • http://ww2.justanswer.com/uploads/gsenmartin/2008-04-22_214950_me1.jpg Guillermo J. Senmartin, Esq.'s Avatar

    Guillermo J. Senmartin, Esq.

    Attorney

    Satisfied Customers:

    110
    7+ years of experience handling various legal matters.
  • http://ww2.justanswer.com/uploads/PA/PaulmoJD/2013-10-10_195858_JAImage.64x64.jpg Law Educator, Esq.'s Avatar

    Law Educator, Esq.

    Attorney

    Satisfied Customers:

    31621
    JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    15975
    Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.