Bill Description: Senate Bill 1227 would define individual health rights and prohibit government overreach in the areas of stay-at-home orders, mask mandates, and visitation denial.

Rating: +2

Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

Senate Bill 1227 would create Section 39-9004, Idaho Code, titled "Health Rights" to define both specific and categorical individual rights when it comes to to health care. 

The bill would place limits on government, saying, "The state, a political subdivision of the state, or a public health district cannot order Idaho residents in general to remain in their homes, close their businesses, social distance, or wear masks or other facial coverings because of an emergency, extreme emergency, or medical emergency, whether declared or undeclared."

As such orders violate individual rights and constitute an unwarranted intrusion into market activity, prohibiting them is consistent with the protection of constitutionally protected rights.

The bill would also prohibit the state, a political subdivision of the state, or a public health district from advertising "via any medium, electronic or otherwise, for the recommended public use of any vaccine, drug, or medication classified as experimental by a competent medical authority." It would extend a similar prohibition to "any vaccine, drug, or medication that has not been fully clinically tested and approved according to recognized, traditional, and accepted standards of clinical testing."

Government should not be endorsing medical treatment options at all, but it is especially true that the state should not be giving an endorsement (either explicit or implicit) to experimental treatments or vaccines. 

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The bill also offers clear statements recognizing individual liberty. One is that a patient "cannot be denied treatment for refusing a vaccine or other medication" and a patient has "the right to refuse treatment."

The bill also says, "A patient has the right to informed consent and must be provided with sufficient information with respect to medications and medical treatment in plain and understandable language prior to being asked for consent to take or receive such medications or treatment." It would further stipulate that the patient (or the patient's legally designated representative) provide "signed informed written consent" before receiving an "experimental drug or medication" from a health care practitioner. 

The bill goes on to say "a patient may not be prohibited from bringing a legal cause of action against a health care provider by the state or a political subdivision of the state" and that "a health care provider licensed or certified by the state of Idaho shall not receive or accept funding, privileges, or benefits from a government entity in return for violating a provision of this section."

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Finally, the bill addresses a patient's access to family and other advocates, saying, "A patient shall, when possible, be given the opportunity to designate a person or persons who will be kept informed of the patient's condition, prescribed or recommended medications, and options with respect to applicable and available medical procedures."

It also says, "Visitation by a patient's family members or legal guardians shall be allowed unless the patient refuses visitation or visitation is expressly denied by the attending physician for sound medical reasons in the best interest of the patient. General denial of visitation by family members or legal guardians shall not be instituted as a matter of administrative policy."

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Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?

Some of the elements contained in Senate Bill 1227 are problematic, such as the assertion that "a patient has the right to emergency treatment." Here we move from protecting personal liberty to asserting a positive right to receive goods and services from medical service providers. Given the lack of qualifiers in the statement, it would appear that this right could be asserted regardless of a patient's ability (or perhaps even willingness) to pay.

Likewise, the bill says that "a patient has the right to choose the patient's health care providers." The scope of this assertion is unclear. But it would be appropriate to include some context to clarify that the right prevents government from disallowing a voluntary treatment arrangement between a patient and a health care provider. As written, however, this right could be interpreted as including a right to compel a medical facility to allow an outside health care provider to practice within the facility. It could also be interpreted as mandating health insurance companies to cover treatment from an out-of-network provider. It is important that assertions of individual rights also respect the rights of health care providers and the market process. 

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