THAT IS…turn the argument explicitly to what was allowed even before the entitlement.

Entitlements mandated by the government are necessarily an intrusion especially to those who don’t wish to be forced into the system.

So, can the health care entitlement, which does allow federally-funded abortions under the Hyde rule, infringe upon the right to privacy of a woman that has become pregnant because she is a victim of a rape, or incest?

Rape and incest victims necessarily require a special need for privacy, specifically doctor-patient privilege/confidentiality, wouldn’t people of all political stripes agree?

Allowing abortion info in a government database could be troubling. It would no longer be just between the woman and the doctor. But it is all medical procedures that would not just be between the patient and the doctor.

Medicaid and Medicare (if there are any childbearing women on medicare) could also be challenged on this theory. The argument ainst them being challenged would be that these are both voluntary programs. The argument against Obamacare is that it will even according to the CBO force more people into it and take away the ability for many to have private insurance. A commerce clause challenge would need to accompany this argument.

Planned Parenthood v Casey changed most of what the Roe court had said. Sandra Day O’Connor replaced the “strict scrutiny” method with one she (or her clerks) cooked up called the “undue burden” standard. Again, it seems they adopted yet another in Lawrence v Texas.

While “ObamaCare” will place an “undue burden” on a lot of people, I’m not sure it’s an apples-to-apples comparison.

The bill just passed does not regulate, redefine, or restrict private medical practices; it regulates and restricts “health insurance,” putting the “undue burden” on health insurance companies, their customers, and taxpayers. Whether it places a “substantial obstacle” in one’s path to obtain medical care via disingenuous regulations is the question to be asking.

The Lawrence Court 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 Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life….The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’”

Healthcare and the full panoply of care in our current system will necessarily be rationed under Obamacare. Obamacare demeans our existence and controls our destiny by limiting our health care choices. All of these cases could be used to our benefit under a RTP challenge.

In Casey a legal restriction posing an undue burden was defined as one having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Who knows if the Undue burden test would apply to general medical issues or just abortion? Even under an undue burden standard, HHS regulating the system will lead to rationing and restrictions in what health care can be received due to regulation of our insurer’s. It is also an undue burden and a violation of our 4th Amendment rights for the government to seize our medical records and place them on a database.