Bill Description: Senate Bill 1009 would establish a list of individual health rights in Idaho code.
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 1009 creates Section 39-9004, Idaho Code, to codify a list of health rights, which are presented more as general principles than as nuanced policies.
Subsection 1 of this bill would place limits on government, such as, "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." It also says the government cannot advertise experimental or untested drugs or medications.
The bill also offers clear statements of individual liberty such as in subsection 2, which says, "a patient cannot be denied treatment for refusing a vaccine or other medication." Subsection 7 says "a patient has the right to refuse treatment." Subsection 9 asserts a right to medical privacy and subsection 14 recognizes (with exceptions) a general right to visitation by family members or legal guardians.
While Senate Bill 1009 recognizes a number of important rights, its lack of specificity would likely limit how effective this section would be.
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 subsections contained in Senate Bill 1009 are problematic, such as subsection 3. It says, "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, it would appear that this right could be asserted regardless of a patient's ability (or perhaps even willingness) to pay.
Likewise, subsection 8 asserts 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 companies.
Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing federal code without noting as it is written on a certain date, using state resources to enforce federal law, and refusing to support and uphold the Tenth Amendment. Conversely, does it restore or uphold the principles of federalism?
Subsection 4 states, "A patient cannot be refused treatment based on sex, age, race, national origin, ethnicity, religion, sexual orientation, gender identity, veteran or military status, or any other basis prohibited by federal law."
This provision is troubling for two reasons. The first is that it adds the term "gender identity" to Idaho code, which has not previously been added to the state lawbook for reasons too broad to fully evaluate here. At minimum, it must be noted that Senate Bill 1009 would grant formal recognition to a concept that has not been defined in Idaho code and is still hotly debated.
The second problem is the broad deferral to "any other basis prohibited by federal law." Idaho statutes should not vaguely require compliance with federal laws or regulations, especially without language to limit such references to a law or regulation as it existed at the time it was incorporated into Idaho statute.
It is especially troubling when no specific laws or regulations are being incorporated, but rather, the state is broadly subordinating its own laws to whatever federal laws may be interpreted as imposing an applicable prohibition.
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