By Christopher Tucker
Bells and whistles are ringing far and wide after the passing of OBAMACARE. One of the more alarming sirens to be sounded is the idea that the language of this new bill will require each individual to be implanted with a device to monitor their healthcare so as to streamline care, monitor daily âhealthâ habits, and keep tabs on individuals. While this is a very real potential repercussion, it is not, currently, the case.
I. A MICROCHIP MANDATE IS NOT EXPLICITLY STATED IN OBAMACARE
The language cited in support of this proposition comes from H.R. 3200 Â§2521, which amends 21 United States Code (herein after referred to as âU.S.C.â) 360(i) (essentially the same legislation), and calls for the extensive tracking of all class II or III devices used in or on a patient so as to âfacilitate analysis of postmarket safety and outcomes dataâ (Â§ 2521 (g)(1)(A),(B)) of the medical device, not the person. The language of this section makes it very clear that the Secretary of Health and Human Services (herein after referred to as âSECRETARYâ) is given broad power over the collection of data pertaining to medical devices.
II. Â§ 2521 CREATES A POTENTIAL PATHWAY TO UNNECESSARY AND UNCONSTITUTIONAL INVASION OF PRIVACY IN ONEâS BODY
No part of H.R. 3200 Â§ 2521, or its counterpart 21 U.S.C. 360(i), explicitly calls for the mandatory implantation of medical recording or tracking devices into individuals. However, this could, and probably would, be the avenue taken if micro-chipping Americans were to be discussed in Washington. Since SECRETARY is responsible for âvalidating methods for analyzing patient safety and outcomes data from multiple sources and for linking such data with the information included in the registryâ¦â (2521 (g)(2)(B), it would seem incumbent upon him or her to not only track the medical devices, but to also track the health and lifestyle of each patient treated, so as to properly analyze âpostmarket safety and outcome dataâ. It can certainly be argued then, that, for proper collection of data to determine a medical deviceâs performance, it would be necessary to eliminate the âhuman factorâ. If someone does not follow the prescribed course of care to make a treatment effective, it would tend to skew the results of a deviceâs effectiveness. To ensure that the device did or did not work properly, it would be necessary to monitor each patientâs lifestyle habits, so as to make a proper determination as to the effectiveness of the medical device.
III. CONSTITUTIONAL CHALLENGES
Determining which test to apply, to decide whether OBAMACARE passes Constitutional muster on the issue of potential forced micro-chipping of Americans for the purpose of data collection, would raise a serious question. The general test used when privacy rights are at issue under the Constitution is the âStrict Scrutinyâ test, which calls for the government to show that its actions are necessary to achieve a compelling government interest. However, when abortions are involved the threshold is not so high. The test applied in these cases states that government must not place an undue burden in the way of a woman seeking an abortion.
It would appear, at first glance, that the undue burden test is appropriate, because it is involved a womanâs right to privacy within her own body, just as each citizen would similarly have in their own body in denying the forced implantation of anything by the government. However, this test determines the level of roadblock or speed bump placed by the government in the way of a woman obtaining abortive services. With potential micro-chipping, there is no roadblock placed by the government, but a mandate that, healthy or not, guilty of a crime or not, one must be subjected to physical bodily invasion and constant monitoring. It would, therefore, make more sense to apply strict scrutiny standard, because the government is forcing an invasion of bodily privacy on an individual, rather than barriers being placed in the way of the individual obtaining a service which they actively seek.
Sadly, under OBAMACARE, since the government now has a fully and deeply rooted monetary and political interest in the health of its citizens (not to mention an ego interest in forcing this round peg into a square hole), many things that would have fallen short of meeting this strict Constitutional standard can now soar effortlessly over this ever shortening standard of scrutiny.
Additionally, the 4th Amendment protects citizens from âunreasonable searches and seizuresâ. Un-consented government invasions of the body (such as forced stomach pumping to obtain evidence) have, in the past, been deemed too intrusive of the person and a violation of the 4th Amendment (See Rochin v. California, 342 U.S. 165 (1952). However, the taking of blood to prove that one has been driving under the influence of alcohol has been decided to not violate the Constitution. The implantation of a monitoring device is much more invasive than blood-taking in two ways. First, the giving of blood requires only a small needle, and leaves no scarring, requires no stitches, and involves no cutting or opening of the skin. Secondly, the blood stays with the government, at a lab to be tested. On the other hand, a monitoring device follows a person everywhere, including the home, which at all times requires a warrant, or a specific exception, to be searched. Wiretapping phones (Katz v. U.S., 389 U.S. 347 (1947) and thermal vision (Kyllo v. U.S., 533 U.S. 27 (2001) have both been held to be unreasonable intrusions by the Supreme Court. Implantation of a monitoring device, which follows one into every private area of life and records personal information, is even more intrusive and unreasonable, because there is no ability to turn it off (even if it were able to be turned off, it would be at the complete and unfettered discretion of a government official, which is also unconstitutional).
Summarily, the individual micro-chipping of Americans is not currently and explicitly laid out in OBAMACARE, but could become a very real possibility under the guise of protection and âdelivery of efficient and affordable healthcareâ. If this were allowed in the future, it would not only fly in the face of the Constitution, but God, the natural law, and each and every individual right that has been recognized since the beginning of time.
Read the language of these sections here:
http://en.wikisource.org/wiki/H.R._3200/Division_C/Title_V/Subtitle_C (Â§2521 OBAMACARE)
http://www.law.cornell.edu/uscode/21/usc_sec_21_00000360—i000-.html (21 U.S.C. 360i)