- The Washington Times - Monday, June 20, 2005

The Canadian Supreme Court delivered a stunning constitutional rebuke to the welfare state this month in Chaoulli v. Quebec (Attorney General) (June 9).

A 4-3 majority held Quebec’s prohibition on private health insurance to force all citizens to suffer equally in protracted waiting for treatment by an ill-functioning public health care system violated the provincial charter. Three justices would have held that the mandatory waiting with no feasible escape to the private sector transgressed the Canadian Charter of Rights and Freedoms.

The Chaoulli ruling speaks volumes about the climbing disenchantment among Western democracies with welfare state misery and government bludgeoning of private enterprise. The Canadian Supreme Court is characteristically an organ of “liberal” orthodoxies (as understood in the United States). Emblematic has been its constitutional blessings for same-sex “marriages” and abortion rights. Thus, the Canadian Court’s subtextual endorsement of Adam Smith’s “Wealth of Nations” and Herbert Spencer’s “Social Statics” was as startling as was President Richard M. Nixon’s 1971 preference in the opposite direction for John Maynard Keynes over Milton Friedman in imposing wage and price controls.

Even in France, rumblings against the welfare state have been stirring. Libertie Cherie, a free-market association, is flowering in popularity. It has launched frontal assaults on back-breaking taxation approximating 55 percent of gross domestic product, chronic public employee strikes for lavish pay and perquisites, and a bloated class of civil servants constituting 25 percent of the working population. As U.S. Supreme Court Justice Benjamin Cardozo taught in “The Nature of the Judicial Process”: “[T]he great [intellectual] tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by.”

In conjunction with establishment of a universal public health care system, Quebec prohibited private health insurance for services available in the public sector. As any novitiate economist could have foreseen, dangerous long waits for treatment emerged. The demand for costless health care is virtually unlimited. Waiting lists are an implicit form of rationing that would constitute flagrant malpractice in private sector medicine. At trial in Chaoulli, a cardiovascular surgeon testified that a patient with a cardiovascular disease is “always sitting on a bomb” and vulnerable to death at any moment. The risk of dying on a waiting list jumps by 0.45 percent each month.

An orthopedic surgeon testified that the customary one year wait for orthopedic surgery increased the risk that curable injuries would become irreparable. Another doctor explained many patients may be crippled or incapacitated with pain during prolonged delays before treatment.

In sum, the evidence was incontestable that Quebec’s public health care monopoly knowingly inflicted physical and psychological harms on its citizens.

Writing for the Canadian Supreme Court, Justice Deschamps declared that in such circumstances, the prohibition on private health insurance to leapfrog the waiting list to avoid death or other personal suffering violated section 1 of the Quebec Charter. It provides, similar to the due process clause of the Fourteenth Amendment to the United States Constitution, that “[e]very human being has a right to life, and to personal security, inviolability and freedom.” The justice denied that the limits on the individual liberties protected by section 1 stipulated in section 9.1 justified Quebec’s insistence that all suffer equally from its public health service infirmities.

The latter delclares: “In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of citizens of Quebec. In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.”

Quebec Health Minister Claude Castonguay testified to the unyielding equality objective of its ban on private health insurance: “We wanted to ensure that everyone would have access to health care, regardless of their ability to pay. … We wanted access to health care to be as equal as possible everywhere in Quebec, regardless of place of residence, regardless of financial circumstances.”

A messianic pursuit of equality, however, is the enemy of liberty, genius and enterprise. Enlightened constitutions arrest majorities from their own egalitarian follies as discerned by Alex de Tocqueville in “Democracy in America”: “Democratic peoples have a natural taste for liberty; left to themselves, they will seek it, cherish it, and be sad if it is taken from them. But their passion for equality is ardent, insatiable, eternal and invincible. They want equality in freedom, and if they cannot have that, they still want equality in slavery. They will put up with poverty, servitude, and barbarism, but they will not endure [unequal conditions].”

Justice Deschamps declared not a crumb of hard evidence supported the speculation that private health insurance would further aggravate the deficient care provided by Quebec’s public health care system. He pointed to several examples of parallel public and private health care in sister Canadian provinces and in Europe.

In the refreshing substratum of the Canadian Supreme Court’s decision was the recognition that if equality of conditions, simpliciter, comes to justify a crippling of individual liberties by the majority, Western democracies will decay and die.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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