Ironically, I believe the way to have Obamacare overturned is as an infringement of our Right to Privacy (RTP) as set out in Roe v. Wade and the other Privacy cases. Since the RTP has been found to be a fundamental right the court must apply strict scrutiny to any law that infringes upon it. Since abortion as a medical decision between the woman and her doctor falls into this right to privacy, why would every other medical decision also not fall under our RTP? I believe that all medical decisions fall under our RTP.
Once that hurdle is cleared, the government must show a compelling government interest in regulating this right. This I believe they can do. However, the key challenge is that this compelling government interest that allows the regulation must be “narrowly tailored” to serve that compelling government interest. What does this mean? In Roe it meant that the Texas law proscribing all abortions was too broad to be narrowly tailored. The court found that only once the fetus was viable could Texas prohibit abortions.
Turning to Obamacare, is the 2400 page bill narrowly tailored? I don’t think so. The healthcare databases infringe our right to privacy as does empowering HHS to engage in rulemaking with virtually no restraints. I don’t think Obamacare could possibly withstand a RTP challenge under strict scrutiny. I am surprised to not see this challenge being advanced. As an attorney, A Catholic, and one who considers himself Pro-Life, the beautiful irony of taking out Obamacare with Roe is that it would chill the Left with the dilemma of either having universal healthcare or abortion rights. If a pregnant woman has a RTP regarding medical decisions regarding her child, why should every other citizen not have that right without HHS interfering and afffecting the ability to contract and have performed other important medical procedures?