Lochner in Canada?

Yes, even we schadenfreude-filled Canucks are happy it’s now wrong for our fellow countrypersons to die waiting for medical care. What were we doing before? Cheering them on at the hospice?

And it’s not much really – Quebeckers can maybe go and buy insurance over and above what they pay in taxes so they can wait in the magical private care line, where thousands of bored doctors will be chomping at the bit to serve them. With the way the right is talking about this decision, I guess now we’ll finally be able to knock Japan off for first in line in the life-expectancy race.

1)I should emphasize that when I analogize to Lochner I don’t mean that the Canadian courts are going to start striking down maximum hours laws, or anything. I simply mean to suggest that reading that kind of liberty of contract into clauses guaranteeing due process is a very dangerous precedent.

2)It’s Scott. :)

god forbid that the wealthy should be denied the right to queue-jump and hog limited resources

One egalitarian response (though not a response I would defend- but its useful to consider anyways) to Brett Bellmore’s comment above is the following:

“I don’t think people should die in the name of equality either. But one major reason why the publicly funded healthcare system is in trouble can be traced back to constraints imposed by wealthy Canadians themselves! Namely, they refuse to support higher levels of taxation and this undermines the effort to re-invest in the public system so that we could reduce the waiting times for all Canadians”.

Now IF all our healthcare problems could be remedied by throwing in more public funds then I think the egalitarian would be able to make this kind of response compelling. But of course the constraints on healthcare are much more complex than this. Healthcare is a tough case because it is a bottomless pit. We could spend an endless amount of public funds trying to increase the lifespan of an expanded aged population. So the problem is not just money, but also the fact that we are all vulnerable to the detrimental consequences of aging, disease, etc. and other factors like the migration of knowledge workers, the lifestyle of North Americans, etc.

What I find surprising is that Canadians are popularly perceived of as very egalitarian people. But I should point out that we don’t have an inheritance tax in Canada and there is immense pressure (from both the middle classes and the wealthiest) on the government to reduce tax burdens more generally rather than raise them to help mitigate disadvantage. Given this scenario, it is not surprising that an egalitarian provision of healthcare is under assault! But it is not the Supreme Court who threatens this. It is Canadians themselves who threaten it when we expect every politician to promise (at a minimum) not to raise taxes though preferably to cut taxes. It is so much easier for Canadians to blame “judicial activism” then it is for them to look in the mirror and see our own collective failings.

The trouble with letting people buy healthcare is that those who can afford to pay will not support taxation to help those who cannot. Soon the system will collapse into plain capitalism.

The Canadian Supreme Court decision needs to be read in context: it closely follows, as the majority repeatedly says, the 1988 Morgentaler decision that struck down the then-existing therapeutic abortion law. People who object to the current decision should likewise object to the Morgentaler decision, but that has mostly been hailed as a victory for abortion rights.

The old abortion law required abortions to be performed in hospitals and only when a hospital commitee determined that the abortion was necessary to preserve the woman’s physical or mental health. In big cities the law was interpreted liberally, with hospitals holding that if a woman wanted an abortion, that showed that not getting one would be bad for her mental health. But in some provinces abortions were not performed at all, and in others women in remote regions had to travel long distances to get an abortion. Henry Morgentaler, who wanted to operate private clinics that provided abortion on demand, and who has just been given an honorary degree by the University of Western Ontario, challenged the law up to the Supreme Court of Canada.

The Court upheld his challenge, holding that the delays imposed on women in less well-served parts of the country were unreasonable and violated their right to security of the person. The Court did not demand that private clinics be legalized; it allowed that Parliament could maintain something like the old system if it rewrote the rules to remove the delays. But abortion politics in the House of Commons prevented that, no new law was passed, and now private abortion clinics operate. As I say, most on the left think that’s a good thing.

The current decision is very similar, holding again that the combination of unreasonable delays in a public system with a ban on private purchase of medical services violates citizens’ rights to security of the person. The decision doesn’t force Quebec or other provinces to allow private health insurance for medicare-covered services (though three or four already do). It just says Quebec can’t forbid such insurance if its public system isn’t providing medical services in a reasonably timely way. The decision explicitly denies that there’s a blanket right to healthcare, and likewise denies that all delays count as unreasonable. (The dissenting minority say the Court shouldn’t be deciding what type of delay is and isn’t reasonable, but then what was the Court doing in Morgentaler?) It’s too soon to say what effects the decision will have, but one possibility is that the provinces will tighten up their systems so they no longer have unreasonable delays. And some well-informed Canadian health-care experts expect that to happen to a sufficient degree that the systemic implications of the decision aren’t enormous.

(Another point: private medical care already existed in Quebec, and was available to the very rich who could pay for medical services as they needed them, e.g., $10-18K for a hip replacement. The effect of the ban on private insurance was just to keep the middle class from accessing these services, since they couldn’t afford to pay that way. But the very rich were already looked after.)

The main point, however, is that the reasoning in the current decision closely follows the reasoning in Morgentaler and is therefore, in the legal context, not surprising. In fact, I don’t see how the Court could have reached a different decision in this case given their earlier decision in Morgentaler. (Well, they could have done it in various ways, e.g. by denying that the delays in Quebec were unreasonable. I mean I don’t see how they could have reached a different decision on the fundamental principles.) So people who are terribly worried about the current decision should have been terribly worried by Morgentaler in 1988.

(I have to say it’s amusing (or something like that) to read posts on the decision by people who don’t know much about the Canadian health-care system or Canadian Charter jurisprudence.)

The Canadian Supreme Court decision was, I believe, a 4-3 vote. Very close, with two new appointees to the Court yet to take their seats. Challenges in other provinces may not therefore have the same result.

Also, as pointed out by others, the decision appears to have been hinged to the idea that private insurance was ok, only so long as the waiting times for procedures were “unreasonable”. That is basically a warning shot across the bow, as far as the single-payer provider is concerned. Canadians do not support single-payer systems for ideological reasons; they support single-payer because, over time, it has met their needs. The Court is reflecting the views of Canadians: if it needs fixing, then fix it or get out of the way.

Slocum is right. The wealthy in Canada have always been able to purchase healthcare services. All they have to do is go to the USA and pay for it themselves. Public and private healthcare can and do operate just fine together. It is not an either/or dichotomous choice. Allowing private healthcare creates more resources, it doesn’t hog limited resources.

Tom–the idea that Morgentaler *requires* this decision is just ludicrous. The obvious difference is that the abortion laws struck down in Morgentaler were 1)vague, and 2)aribtrarily enfocred. Essenitally, TACs could plausibly grant or deny any abortion. Moreover, the gross differences in application were not random, but obviously priveleged wealthy women and women who live in urban areas, which raises further problems of due process.

None of this applies to the current case, despite the vain attempts of the court to stretch a popular precedent to cover this one. The Quebec law is clear, and is not arbitrarily enforced in any respect. There are no geographic or class ineuities in its application. The court *claims* that there’s no substantive right to health care, but the decision simply makes no sense otherwise. Mogentaler was a “procedural” due process decision; the court’s attempt to claim that Chaoulli is are utterly implausible. And, certainly, the argument that Morgentaler is so similar to Chaoulli that it compelled the result is foolish. The cases are, in fact, easily distinguishable.