Blue Collar Muse

As one might imagine, the revelation that the State of Tennessee is considering forcing insurance companies to provide them with the private medical and health information of Tennessee policyholders is generating some buzz.  There’s a link-fest at the end of this post.  But not all folks have landed on the same side of the fence as me.  At least one friend wrote in response to yesterday’s post that she welcomed the database and the good she believed it would do in the area of consumer education and advocacy for availability of service and fair pricing.

Kay Brooks begins the discussion of those issues specifically at her blog.  She was not responding to my friend, just taking up the idea that bills like HB2289 may not be the best way for Government to address those concerns.  In yesterday’s post, I had mentioned there were other reasons to oppose HB2289 beyond those I listed.  One, which I did not address there, I shared with my friend in ‘Comments’.  It regards my belief HB2289 is bad legislation because, in addition to my earlier points, I cannot see it being upheld as Constitutional.  I wrote

This is not about being for or against information gathering or being from a certain political party. It is not about Right and Left. It is about Right and Wrong. As I mentioned, the brief list of objections I raised in a blog post is not the extent of the problems with this bill.

I did not mention that it violates the 4th Amendment of the US Constitution. There we find

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “

The point behind the 4th is that my medical records are mine and cannot be taken from me unless there is some reason to believe they are being used for a criminal purpose.

[Constitutional scholars feel free to correct me here]

Under no other circumstance would any agency of the Government be justified in pursuing access to my medical “papers”. And only then after showing probable cause. My papers are my papers. The Government can ask me for them and I may give them up. But if I choose not to, they have absolutely no right to take them from me.

I understand the 4th is an amendment to the US Constitution and I am a huge supporter of state’s rights, but the 10th amendment does not grant states a license to ignore the rest of the amendments in their exercise of authority. Thus if you choose to participate in the database for any reason of your own and participation is voluntary, then I fully support your doing so (although I may object to the expense to the taxpayers of establishing the database - another question entirely).

This bill is not voluntary and my personal information is at risk of being taken from me by force. That is decidedly not something I support nor do I see it as partisan posturing. Unless you are willing to agree that the parties are ideologically divided along the lines of “desiring unconstitutional intrusions into the lives of citizens” and “opposing unconstitutional intrusions into the lives of citizens”. Then I’ll happily admit to being partisan in this matter.

Concerning the bulk of your response that there is a good purpose and good intent in the Government’s desire for this information, let me just say that I never said their interest in it - right now - is bad. What I said was that the potential for abuse of access to such information was great and was a threat.

I stand by that assessment. I do not trust the Government to make my decisions or analysis for me. I trust that Government will do exactly what it has done since Government was invented - try to expand its control and influence in the day to day life of the populace until it is the ultimate and supreme power. By the ballot if possible and by bullets if not.

All of Government, even the necessary parts (and we can disagree as to what those are), is an exercise in control. The question is not “Should there be control?”, it is rather “Who should be in control?” The less Government, the more the individual must control his actions and do what is best for himself and in so doing do right by all those around him. The more Government the less the individual controls his own life.

If such a database is so demonstrably valuable to the whole of society that I should freely surrender my data to it in my own best interests and in the interests of my responsibility to the community then you and Tennessee are welcome to make that case and ask me for it. The rightness of it will be readily evident to men of goodwill and intelligence. Until then, forcing me to surrender what is mine because someone else is of the opinion it might be helpful is not the way to get my willing participation.

Not the way to get my participation … and not Constitutional.

At dinner last night, another friend mentioned that there are many pieces of legislation which have become law that are blatantly unconstitutional, yet that does not stop them from being enforced by the Government with its full ability to do so at the point of a gun.  His main point was merely knowing and demonstrating that something is unconstitutional in the marketplace of ideas is not enough.  We may know our rights are being violated, but unless we do something about it, what good does our knowledge do?  Where are the lawsuits against laws already in force like HB2289?  Where are the groups willing to finance the legal challenges to these things if they make it past the first line of defense?

We make laws today in many cases because we can.  We see a need and the first solution we employ is legislative.  On its face, that seems a legitimate response.  But there are so many areas from which Government is specifically excluded from by the Constitution that our initial response may not be the Constitutional response.  John Shadegg (R-AZ) has continually proposed an Enumeration of Powers to his colleagues in the US House.  It simply requests that all legislation submitted carry with it a reference to the portion of the US Constitution which authorizes the Federal Government to be dealing with the matter.  Not a bad idea.

Perhaps the states should consider something similar.  In the long run, it might save some time.

Blue Collar Muse

SEE ALSO:

All Payer Claims Database by Susan Lynn @ Susan Lynn;

All Payer Claims Database - Update 2 by Susan Lynn @ Susan Lynn;

The Tennessee Center for Policy Research analysis of HB2289/SB2239;

Privacy Power Play by Kay Brooks @Kay Brooks;

What Possible Harm Could THIS Do? by Rustmeister at Rustmeister’s Alehouse;

You Will Turn Over Your Health Data and YOU WILL LIKE IT by Ben Cunningham at Taxing Tennessee;

TN HB2289 Violates Privacy and Market Competition by Truman Bean @ Truman’s Take.

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