03/18/2010 05:12 am ET | Updated May 25, 2011

Is the Denial of Health Insurance Claims a Violation of the Equal Protection Clause of the 14th Amendment?

Let me start off by saying, I intend to be provocative here and intend to gather opinions on the legality of denying health insurance and health care treatment to a portion of the U.S. population.

The recent health care proposal reforms have provided the opportunity for many Americans to bear witness to their own personal health care horror stories. Most of the stories are heart wrenching, and have even resulted in the deaths of Americans denied health insurance coverage. A recent story in the Huffington Post is one such example. In this story a young girl died after failing to receive a liver transplant in time, due to denial of coverage for the operation by her insurer, Cigna.

In the Cigna case the family was insured under an employee benefit plan regulated by ERISA, the Employee Retirement Income Security Act. ERISA establishes the minimum requirements for pension plans and health care insurance plans. Although ERISA does provide for some protections to the employee, it permits insurers to determine to whom, and for what they deny coverage. In the case of this family, the insurer denied the liver transplant claiming the procedure was experimental. The family later also lost its claim for damages, after the death of their daughter because of a 1987 Supreme Court case; Pilot Llife Ins. co. v. Dedeaux, 481 U.S. 41, 1987,where the Court issued a ruling that shields employer-paid health care plans from damages over their coverage decisions. In fact the courts have routinely issued decisions denying consumers recourse for insurance denial, even in cases such as the Cigna, where the result was death. This 2005 article from the Los Angeles Times illustrates the point.

Is the denial of health care and health insurance a violation of the U.S.Constitution?

Equal Protection Clause -- U.S. Constitution

The U.S. Constitution, 14th Amendment provides that "nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This has come to be termed the "Equal Protection Clause." Roughly, the Equal Protection Clause prohibits government, State and Federal from denying rights to one group that another group enjoys. Perhaps the most famous of the Equal Protection Clause decisions is the Civil Rights cases, in particular: Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court decision that mandated that "separate but equal," as applied to public accommodations is violative of the Equal Protection Clause of the 14th Amendment. The Equal Protection Clause so far has only had limited application to health care. The Supreme Court for example applied the Equal Protection Clause In Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).As in the recent famous Shivo case- the issue hinged on determining the patient´s wishes while in a vegetative state. The court found that Cruzan, though in a vegetative state and therefore incompetent, following a car accident, had the same right to refuse treatment as a competent person under the Equal Protection Clause of the 14th Amendment.

I argue that the Equal Protection Clause applies to health care treatment in general and especially in ERISA employee benefit cases. Patients whose life and death decisions about health care are left solely in the hands of the insurer -- who can willy nilly decide who gets care -- are not being given equal protection under the 14th Amendment. The recent wave of horror stories brings this point home. Health insurance reform therefore, is not only needed, but in fact it may be required under the U.S. Constitution. Moreover, the Equal Protection Clause may require some form of Public Option as the only way health care treatment can be accessible to all Americans.

Subscribe to the Politics email.
How will Trump’s administration impact you?