Dr. Christopher Smithmyer: Has Congress Forgotten About Constitutional Rights in Healthcare?

Some lawmakers appear to take their obligation to safeguard the Constitution more seriously than others. For his part, Sen. Lamar Alexander (R-Tenn.) does not appear to take his oath to the document seriously. A new bill proposed by the senator from Tennessee will strip doctors, medical professionals, and hospitals of their First and Fifth Amendment rights even if the derailed compensation structure forces them to cease operations. It is doing so under the guise of curtailing the issue of surprise medical billing.

Surprise medical billing occurs when a patient’s health insurance plan doesn’t cover charges relating to “out-of-network” care. Typical examples include when a patient receives emergency care from an out-of-network provider, or when an out of network provider teats a patient in an in-network facility. Often, surprise billing may lead to hospitals presenting patients with huge bills that must be covered out-of-pocket, sometimes in the thousands of dollars. It is a severe problem that Congress should address, but not by blatantly violating the Constitution.

Under Alexander’s Lower Health Care Costs Act (LHCC), the United States government would do just doing just that by establishing price controls on healthcare providers at “median in-network” rates. Supporters of the bill believe it will effectively lower healthcare costs, but ultimately the legislation would lead to doctor and hospital shortages, reduced quality and access to care, and concentrated power in the hands of bloated health insurance companies.

Paul Clement, the 43rd Solicitor General of the United States, summarized the issue succinctly in a recent legal memo. Of the LHCC, Clement writes, “Those efforts not only oversimplify a complex issue and deviate from bedrock principles of freedom to contract; they also raise constitutional concerns.”

Invoking the Takings Clause of the Fifth Amendment, which reads, “nor shall private property be taken for public use, without just compensation,” Clement argues that price controls are, in effect, a “regulatory taking,” as the idea that healthcare professionals would be subject to arbitrary government pricing models “runs counter to bedrock freedom-of-contract principles.”

Much like a case of the federal government seizing land for a compelling public use under eminent domain, price control legislation seeks to capture the services of healthcare providers for a third party. Regardless of the profession, the Constitution guarantees fair compensation to all Americans, even if special interests (in this case, insurance companies) balk at the price they name.

Moreover, Clement expresses that this action would also threaten the First Amendment rights of physicians. Specifically, the ability for healthcare providers to freely associate with one another, refuse association with various health insurance plans, and set their reimbursement rates.

“It is therefore no understatement to say that federal proposals to eliminate balance billing pose a significant threat to all healthcare providers and their ability to secure sufficient compensation for their services,” Clement states. Furthermore, as the years go by, he argues that “in-network rates would become increasingly divorced from market realities.”

Price controls, such as those contained within the LHCC, would only serve to distort free market forces, disincentivize innovation and research on the part of doctors and medical researchers, and further limit medical access for everyone. Other solutions, such as independent arbitration between healthcare insurers and providers, would leave the constitutional considerations of all parties intact while providing complete relief to patients in cases such as those involving surprise billing.

Constitution Day shouldn't just be a day to reminisce about the past. It should be a time when all lawmakers reflect on whether they are holding to the promises they made during their oath of office.

Those who have sworn to protect and uphold the Constitution of the United States must acknowledge the unconstitutionality of the LHCC and the abysmal history of failure that it is destined to repeat. Legislators much remember their oaths and safeguard the constitutional rights of patients, doctors, and healthcare professionals from even the best of intentions by rejecting the bill should it come up for a vote.