LAWYERS, PARALEGALS, AND VOLUNTEERS

Are the Jabs Prohibited by the Ohio Constitution?

While I am honored to have people from around the world subscribed here, I am from Ohio, and we have a debate going on. Back around the time that Obamacare was passed, states around the country were furious about people being forced to buy insurance. As a result, Ohio amended its Constitution to include Article 1 Section 21 which stated:

§ 21 Preservation of the freedom to choose health care and health care coverage.

(A) No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.

(B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance.

(C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.

(D) This section does not affect laws or rules in effect as of March 19, 2010; affect which services a health care provider or hospital is required to perform or provide; affect terms and conditions of government employment; or affect any laws calculated to deter fraud or punish wrongdoing in the health care industry.

(E) As used in this Section,(1) “Compel” includes the levying of penalties or fines.(2)“Health care system” means any public or private entity or program whose function or purpose includes the management of, processing of, enrollment of individuals for, or payment for, in full or in part, health care services, health care data, or health care information for its participants.(3) “Penalty or fine” means any civil or criminal penalty or fine, tax, salary or wage withholding or surcharge or any named fee established by law or rule by a government established, created, or controlled agency that is used to punish or discourage the exercise of rights protected under this section.

The issue currently being discussed in Ohio is whether this Amendment would prohibit or could be interpreted to prohibit, jab mandates. To answer this question an attorney is going to look at the language of the law, any case law interpreting this provision of the Constitution, and then, to other evidence. Unfortunately, I do not believe this Amendment will accomplish our goal of ensuring medical freedom.

The problems starts with the text. The most relevant aspect of the statute is Part A which states “No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.” This language clearly bans participation in a health care system and is the foundation for the argument that some are making that this can be used to stop mandates. The problem is that “health care system” is defined in Part E of the statute to mean, “any public or private entity or program whose function or purpose includes the management of, processing of, enrollment of individuals for, or payment for, in full or in part, health care services, health care data, or health care information for its participants.” Nothing in this indicates that this Amendment had anything to do with health freedom, but rather freedom to choose as it pertains to the health care system.

I looked to see if there is any case law that has interpreted this differently and there really is not. The only case that even touches on this was State v. Rohrer, 2015-Ohio-5333 and it did nothing to bolster the argument.

From there I looked at other sources that may allow me to argue that this Amendment would protect medical freedom and they all pointed the other direction. The history of the Amendment made it clear that it’s purpose was focused on freedom to choose to participate in any given system of healthcare rather than about medical freedom. The only item that indicated that this may have anything to do with medical freedom is the title and even that is a weak argument at best. Freedom to choose health care would indicate a right to accept or reject health care but it seems like a stretch to suggest that this would have anything to do with private employer mandates. I will not give the other side of this issue pointers as to how I would argue against this but ultimately I just do not see this as a case that could be won in the courts.

Beyond the text of the Amendment, there is also the reality that even if someone were to issue an executive order or a regulation interpreting this Amendment to bar jab mandates, that order or regulation could still be rolled back by the next administration. Ultimately, I am strongly of the opinion that for Ohio to be free we need to pass legislation or a new Amendment that clearly preserves health freedom in a very robust way.

Health freedom is the preeminent issue of our time. At this point there is no question that these jabs are not effective and are frankly unsafe (see The Renz Law Evidentiary Findings). For something this important we need to pass an Amendment or at least legislation rather than counting a long-shot interpretation of the law to preserve one of our most important liberties.