Substantive Due Process in Healthcare

The thirteenth amendment is considered the genesis of the civil rights movement in this country.

But in many ways, it was the fourteenth amendment that solidified the concept of civil rights in this county as we currently understand it – by expanding upon the concept of substantive due process.

A principle that allows courts to protect certain fundamental rights from government interference, even if procedural protections are present or the rights are not specifically mentioned elsewhere in the US Constitution.

Something that will come to play a major role in how healthcare laws are examined in the public and adjudicated in the courts. We know healthcare is growing more complex, far more complex than the current healthcare laws ever intended – creating a disparity between healthcare behavior and law that has grown into a chasm.

As exemplified best in the George Floyd murder trial – a high profile murder case which came down to the pathophysiology of hypoxia and asphyxiation.

Healthcare laws will need to match healthcare behavior with the same level of complexity. Currently most healthcare laws are designed to restrict specific healthcare behaviors or specific contexts in which healthcare behavior can take place.

When a law restricts a perceived liberty – be it freedom, healthcare, speech – the public invariably balances the law with the behavior it restricts.

James Madison, one of the principal Federalist authors and architect of the Constitution, described this balance as a triangulation – in which laws are interpreted and modified to optimize the rights of everyone should a disagreement or undue burden arise.

It should be no surprise then that Madison spearheaded the efforts to include the Bill of Rights into the Constitution. Because the first ten amendments are laws designed to protect, not restrict the natural rights of Americans. And subsequent interpretations of these amendments always balance the protection of these rights with commensurate responsibilities.

We have the freedom of speech so long as we do not harm or injure others through our words. We have the right to bear arms so long as we do not use the right to intimidate or hurt others.

For healthcare laws to accurately represent the complexity of healthcare behavior, they must be interpreted like the laws in the Bill of Rights, implementing Madisonian principles of triangulation to find a medically appropriate balance between law and behavior.

The right to substantive due process requires that legal interpretations of healthcare laws maintain this balance. Yet without a properly established understanding of substantive due process in modern healthcare, most healthcare laws are interpreted in ways that infringe upon basic healthcare rights.

The dynamic characteristics of healthcare often make it difficult to enumerate the healthcare rights described through substantive due process, and make it equally easy for healthcare laws to unnaturally restrict these rights.

When a restrictive law inhibits one aspect of an individual’s healthcare behavior, it affects other aspects in unforeseen, counterintuitive ways. Making it impossible for a law that only focuses on one behavior to encompass all the complexities intrinsic to healthcare rights.

Restrictive healthcare laws produce reactions and unintended consequences that manifest over time as undue burdens.

Instead, healthcare laws should be viewed in a balance, with each interaction breaking down into a set of corresponding responsibilities and burdens. With the right balance distributing the full set of responsibilities and burdens properly – both those anticipated and those unforeseen, accounting for the law of unintended consequences.

Or the secondary and tertiary effects of legal interpretation that sway the distribution of burdens in ways not anticipated when the law was first enacted. Not only from one set of individuals to another, but inappropriately distribute the burden of actual risk relative to potential risk, clinical risk with legal risk.

In law, we perceive the distribution of burdens in terms of individuals or minority populations who are disenfranchised in some capacity due to a law or the interpretation of a law. But in healthcare, the distribution of burdens must account for actual risks and potential risks that may occur when implementing a law into clinical practice.

And accounting for all these burdens is a monumental task, underscoring the complexity of the problem, but making the need to build upon substantive due processes in healthcare all the more pressing.

No time like the present.

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