Is there a Constititional right to medical care other than an abortion? tl;dr version: I have a Constitutional right to pay for an abortion from a willing medical provider, even if a local statute purports to forbid it. Do I have an analogous general Constitutional right to pay for and obtain other kinds of medical care despite local statutes or are my rights limited to abortion? So, the landmark US Supreme Court case Roe v. Wade, 410 U.S. 113 (1973) found that there was a Constitutional right to abortion under many situations even if apparently banned by state law. In other words, many state abortion laws are unconstitutional. Is abortion the only medical procedure that people in the US currently have a Constitutional right to, or are there other medical procedures or interventions that are similarly protected under the US Constitution? If other medical procedures are protected, what principles apply to determine which interventions are Constitutionally protected and which are within the police power of states to ban or allow at their discretion? For example, suppose Maine passes laws banning laser eye surgery, appendectomies, skin grafts, and all forms of addiction therapy. Is there precedent to indicate whether these laws would necessarily be Constitutionally infirm under the principles upholding Roe v. Wade? In other words, is abortion exceptional among medical procedures in being Constitutionally protected or is there a general Constitutional right to reasonable health care despite statutes attempting to restrict it? Restated, I know that I have a Constitutional right to an abortion. Do I also have Constitutional rights to open-heart surgery, tumor removal, and Cognitive-Behavioral Therapy, or are my Constitutional health care rights limited to abortion only? This is not an abortion debate thread. Please keep all answers within the scope of present Constituional law and principles, regardless of what might or might not happen later this year. To be clear (and addressing user253751's comment), I am omitting provider willingness and patient ability to pay from this question. So (hypothetical), my doctor is willing to perform laser eye surgery, I am able to pay, but state law makes all eye surgery a felony. Is this law Constitutional? Discussion: It is interesting that access to abortions is Constitutionally protected while access to medical cannabis is, apparently, not, even though both qualify as health care and are controversial enough to have been banned by statutes in more than one jurisdiction. What's the principle that determines why abortions are protected but cannabis is not? user6726's mention of the right to refuse vaccines is the opposite of what I am asking. I'm asking more about the right to receive a vaccine despite the legislature or the executive saying I'm not allowed to. If I want the vaccine, I can find a provider willing and able to give it to me, and I can pay, do I have a liberty interest in getting the vaccine despite local law saying that the vaccine is only for small children?
In the US, the most wide-spread proscription against a medical treatment (broadly construed) is that only 10 of 50 states allow physician-assisted suicide. In Washington v. Glucksberg (one of the states that subsequently made such suicides legal), SCOTUS affirms that such a law does not violate the Due Process Clause. Given a historical analysis, the court concludes that an &quot;asserted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause&quot;. O'Connor in her concurring opinion further states that &quot;There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths&quot;, but this falls short of a ruling that a person has a protected liberty interest in seeking medical care. Cruzan v. Director affirms that &quot;[a] competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment&quot; (also noting that &quot;informed consent&quot; may derive from common law or specific state constitutions). Reciting prior reasoning on Due Process and medical treatment and referring to Jacobson v. Massachusetts (smallpox case), they note that &quot;the Court balanced an individual's liberty interest in declining an unwanted smallpox vaccine against the State's interest in preventing disease&quot;. There seems to be a dearth of cases affirming a protected liberty interest in seeking a particular medical procedure. Were the court to announce a fundamental right to seek some medical treatment, that right could still be subordinated to the states compelling interest in preventing some harm associated with a medical procedure, with legal review being carried out under a strict scrutiny standard. It should be borne in mind that Congress does limit access to drugs and devices, hence there is no constitutionally-protected right to take LSD as a treatment for mental problems. To the extent that a procedure relies on a (not-yet approved) device, that device must be approved by the FDA.
Like a lot of Scottish criminal law, there's no specific legislation, but it is illegal through common law. This was also true in the rest of the UK until the 1800s, when statutes were passed with the aim of making abortion law clearer (generally forbidding it). This didn't extend to Scotland leaving much of its abortion law unclear. The 24 weeks limit that the Scotsman article references is from Section 1 of the Abortion Act 1967 (as amended). This act did apply to Scotland. The act specifies conditions under which abortion within the first 24 weeks is legal, and that it is always legal when there is grave risk to the woman's health. When the circumstances of the pregnancy fall outside the provisions of the act, the existing Scottish common law prevails. For further information, this UN document provides a good summary of abortion law in the UK.
It is generally understood that governments do have the right to quarantine citizens in case of epidemic outbreaks. In nations with a rule of law, the extent of quarantine regulations may be challenged in court. A challenge against the app has been filed, and trying to second-guess the court by reading sections of the constitution seems to be pointless.
&quot;Could Maine pass a law making New Mexico corporations and LLCs legally nonexistent in Maine (and removing the corporate veil in cases where Maine courts have jurisdiction)?&quot; No. The full faith and credit clause of the U.S. Constitution, and the dormant commerce clause doctrine of U.S. Constitutional law would both invalidate a Maine law to that effect. One might think that the privileges and immunities clause of Article IV, Section 2 of the U.S. Constitution (as opposed to the privileges and immunities clause of the 14th Amendment) might also invalidate this law (e.g., it also prohibits residents of another state from obtaining occupational licenses in a state). But, this is not the case, because the U.S. Supreme Court held in Paul v. Virginia, 75 U.S. 168, 180 (1868), that corporations are not protected by the privileges and immunities clause. See generally, here. This doesn't mean that Maine couldn't regulate foreign corporations in some manner that doesn't unduly discriminate against out of state corporations. For example, most states require out of state corporations that do business in that state to pay a small fee and make a simple filing with the Secretary of State of that state authorizing them to do business in that state as a precondition to filing lawsuits or counterclaims seeking relief in their state's courts. But, this is far from a denial of the very existence of the out of state corporation and doesn't, for example, prohibit the out of state corporation from defending itself against suits brought against it in that state's courts. Likewise, it does not prohibit an out of state corporation from owning property or from affording limited liability protections to its owners.
There are a number of specific limitation on what can be made criminal in US law, derived from constitutional protection. Specific Rights Expressions of free speech, for example, cannot be made criminal, although there can be laws which regulate or impact speech to a degree. Similarly, the establishment clause of the First Amendment prohibits a law requiring people to attend a particular church, and he free Exercise clause prohibits any criminal penalties for any religious practice or lack of practice. Most of the other provisions of the Bill of right would impose similar limitations. The legislature cannot criminalize what people have a constitutional right to do. Thre are also specific limitations not in the bill of rights, such as the prohibition of Ex Post Facto laws, the right to trial by jury, and the constitutional limitation of Treason laws. Rational Basis Beyond that the Due Process clause of the 5th and the parallel clause of the 14th impose limits on criminal law generally. Criminal laws must have (at least) a rational basis. The legislature cannot just prohibit picking up papers because they felt like it, they must have articulated a problem and a plausible reason why a given law would address it. If they don't the law may be overturned as unconstitutional. If a law is challenged as being unconstitutional, it will currently either be subject to rational basis analysis, or to one of the stricter levels. However a law which cannot pass rational basis analysis will not survive intermediate scrutiny or strict scrutiny either. Laws which appear to invade one of the enumerated rights, or a right that the Court has deemed &quot;fundamental&quot; are normally tested under either strict or intermediate scrutiny. According to the the Wikipedia article: Courts applying rational basis review seek to determine whether a law is &quot;rationally related&quot; to a &quot;legitimate&quot; government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny. ... laws implicating unenumerated rights that the Supreme Court has not recognized as fundamental receive rational basis review. ... In modern constitutional law, the rational basis test is applied to constitutional challenges of both federal law and state law (via the Fourteenth Amendment). This test also applies to both legislative and executive action whether those actions be of a substantive or procedural nature. The rational basis test prohibits the government from imposing restrictions on liberty that are irrational or arbitrary, or drawing distinctions between persons in a manner that serves no constitutionally legitimate end. ... A court applying rational basis review will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical non sequitur. (See Killian, Johnny H., George A. Costello, &amp; Kenneth R. Thomas, co-eds., The Constitution of the United States of America: Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002, by Congressional Research Service, Library of Congress (Senate Document No. 108-17, 108th Congress, 2d Session) and specifically Romer v. Evans, 517 U.S. 620 (1996) at 635) Rational Basis analysis became accepted after the demise of &quot;substantive Due Process&quot;, mostly in a civil, rather than criminal context. A version of it was suggested in Lochner v. New York 198 U.S. 45 (1905), in the dissent by Justice Holmes. It was adopted as governing in [*Nebbia v. New York * In United States Department of Agriculture v. Moreno 413 U.S. 528 (1973) The Court overturned, on a rational basis scrutiny, a law excluding households consisting of unrelated people from the Federal Food Stamp program, writing: [A] bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Specific cases In Eisenstadt v. Baird 405 U.S. 438 (1972) a law that criminalized the distribution of contraceptives to unmarried persons was overturned on a rational basis review. Similar cases are now generally treated with intermediate scrutiny. In James v. Strange 407 U.S. 128 (1972). a Kansas law reclaiming payments for public defenders was overturens on rational basis review as “an impermissible burden on the right to counsel established in Gideon v. Wainwright.&quot; In Bowers v. Hardwick 478 U.S. 186 (1986), rational basis analysis was employed to sustain a statute criminalizing homosexual activity. However, this was later overturned.. Vagueness Also under Due Process, vague laws are prohibited. If a reasonable person cannot tell from the law what is or is not illegal, the law can be overturned for vagueness. Procedural protections Then there are procedural limits, also largely derived from the Due Process clause(s). A law cannot automatically convict people without a genuine hearing, in which a person can present a defense to an independent, impartial judge or jury. A law cannot impose duties which are flatly impossible to perform. A law cannot impose punishments which are considered unreasonable for the seriousness of the crime (as evaluated by judges). Other Limits There are other limits as well, it would take a book to list them all in detail. But those are some of the more frequently applied ones.
This is indeed an area of law where the answer does depend on the jurisdiction. As a 2015 article on the subject noted (and I am loathe to refer to less current sources as this is a rapidly changing area): The United States has no national laws or regulations governing assisted reproduction. However, many states have piecemeal legislation. Some aspects are regulated, while others are not; some states have strict laws or regulations whereas others are looser. As a 2017 American Bar Association article with citations notes, this isn't entirely true. There are some national laws that apply, but they aren't comprehensive and probably don't control the situation described in the OP. It also notes that: Certain states, like California, have created a legislative environment supportive of surrogacy by providing for the validity and enforcement of commercial surrogacy agreements and enacting legislation to define the resulting nontraditional parental relationships.10 Others, like New York, explicitly prohibit commercial surrogate parenting contracts,11 requiring most residents and potential surrogates in the state to seek desirable surrogacy arrangements in other states. However, so many aspects of ART are simply not addressed by the states:12 there is no state regulation of the number of children that may be conceived by an individual donor, no rules regarding the types of medical information and updates that must be supplied by young donors as they age, no standards regarding genetic testing on embryos, no limits on the age of donors, and virtually no regulation of the gametic13 material market. (Gametic material means sperm and eggs.) The American Bar Association has more resources on related issues here. A 2014 article surveyed the issue broadly. Colorado has a law that permits arrangements like these and makes them enforceable if the formalities of the statute are followed. It is not easy to figure out exactly which states do and do not allow this because: (1) there is a model act to authorize this but many states that allow it crafted their own legislation rather than following the model act (Article 6 of the Model Act is the part relevant to the OP), and (2) some states have allowed this kind of arrangement via case law rather than statutory law. There are also states with no statutes on the subject and no clear case law one way or the other. As of 2010 all but a handful of states had some kind of legislation, but as noted above, some of that legislation disallowed rather than authorized certain practices or only address some issues and not others. This article reviews in detail the facts and rulings in several cases that are on point to this issue, for example, from California, Minnesota and Montana.
In Torcaso v. Watkins, 367 U.S. 488 (1961), the US Supreme Court ruled unanimously that a similar provision in Maryland's constitution violated the First Amendment and could not be enforced. So presumably the North Carolina provision is similarly unconstitutional and unenforceable. It's not clear why it wasn't removed in 1971. I found references to a 2009 incident in which an avowed atheist named Cecil Bothwell was elected to the Asheville, NC city council. Opponents apparently threatened to mount a legal challenge to his eligibility under the Article VI provision. It's not clear if they actually tried to do so, but in any event, Bothwell served his full four-year term and was then re-elected for another.
Probably Or they could pass a law prohibiting bans. Since the provision of abortions is a commercial enterprise that affects interstate commerce, the Federal government probably has jurisdiction through the Commerce Clause.