The Constitution is remarkably terse, concise to the point of brevity.
More has been written contemporaneously and subsequently interpreting and explaining the Constitution than what is written in it. Even the 27 Amendments encompass nearly as much text as the original Constitution.
Yet there is no shortage of debate on the interpretation of the Constitution. Even to this day, the principal source of information to guide our understanding comes from the Federalist Papers, a set of documents written principally by Alexander Hamilton and James Madison.
The latter, Madison, would be known as the author of the Constitution. And he provided much of the intellectual foundation contained within it. He championed many of the doctrines we take for granted today, including the principles of equal distribution of burdens and affirmative laws.
Equal distribution of burdens, according to Madison, means the most appropriate interpretation for any law should minimize burdens of the law upon any one individual that should be distributed across society equitably. Madison reasoned many laws can be interpreted to impose undue burdens upon select individuals as a means of targeting or disenfranchising certain individuals. And the only way to avoid such pernicious interpretations of the law is to mandate the burdens be distributed as fairly as possible.
The concept of affirmative laws takes this a step further. It says laws should balance a right with a corresponding responsibility. For example, the right to free speech comes with the requirement that speech cannot be used to intentionally harm or hurt individuals. The laws balance responsibilities with rights.
When taken together, the principles define much of our understanding on the Constitution – we are entitled to equal protection under the law and every law must balance some oversight or responsibility with individual rights and freedoms.
This is how we interpret the First Amendment, and how we understand the remaining amendments.
But when we apply this interpretive framework to healthcare laws, we end up more confused. Healthcare laws are unique in this way. The laws that oversee healthcare behavior regulate healthcare by simplifying it. But in the process of simplifying, the laws inevitably oversimplify complex behavior. As a result, we are confronted with a paradox.
The simpler the law, the more restrictive it becomes.
The more restrictive the law, the less medically sound it becomes.
On the other hand, the more medically-sound the law, the more complex it becomes.
The more complex the law, the more difficult it is to follow.
Hence we see a paradox in healthcare laws – balancing simplicity in law against a medically-sound basis of law.
Unlike other behaviors governed by the Constitution, healthcare is incomparably complex. And the complexity underlying healthcare behavior stretches the interpretive framework of the Constitution beyond most people’s understandings.
It is easy to understand why gun rights should take into account the individual’s right to self-protection. It is difficult to understand why fetal heart rate should be the cutoff for performing an abortion.
Healthcare behavior is interpreted through a legal framework that emphasizes discrete actions – a lab value, a specific symptom or sign. But healthcare is more than action. It is a complex array of clinical decisions and behaviors that only manifest as an action.
Laws attempting to oversee one action fail to account for the myriad of decisions and behaviors that lead up to that action. The inability of healthcare laws to embody the full array of healthcare behaviors gives rise to the paradox.
If we attempt to make laws more complex, affirmative in nature, while balancing equal distribution of burdens, then the laws become difficult to follow.
Healthcare laws must encompass the full scope of healthcare behavior. But they become difficult to follow or understand in the process. Rather than recognizing this paradox, working to address it, most lawmakers simply introduce restrictive laws.
As a result, we have restrictive laws that simplify healthcare behavior into laws that are easily adhered to. This then creates an unequal distribution of burdens.
That use the pretense of medicine to justify a preexisting belief on healthcare behavior through contrived laws, effectively moralizing healthcare behavior we never understood medically to begin with.
Why bother understanding the complexity of healthcare behavior when we can simply restrict it?