MOFFIT: Ladies and gentlemen, I am happy to join my
co-host, Grace-Marie Turner, President of the Galen Institute, in
welcoming you to The Heritage Foundation. We are honored to have
with us Dr. Jacques Chaoulli, whose recent case before the Canadian
Supreme Court ended in a major victory for health care freedom in
Canada, patients have long been legally prohibited from spending
their own money to purchase medical care privately if that care was
also provided under the Canadian government's health care program.
Many Canadians who did not want endure the wait for treatment under
the government program, or suffer the pain or inconvenience of
these restrictions, would often have to travel to the United States
to get the care that they wanted or needed. That is why Dr.
Chaoulli's victory in the Canadian Supreme Court, allowing patients
to secure private care in Canada, is historic.
Canadian case has relevance for Americans. While ordinary Americans
would consider government restrictions on their ability to spend
their own money on legal medical services to be a shocking
violation of their personal freedom, they should be reminded that
the Clinton Administration and Congress enacted a similar
restriction in the Balanced Budget Act of 1997 for the Medicare
population. Under Section 4507 of the act, a Medicare patient could
contract privately with a doctor for a medical service covered by
Medicare only if the doctor would sign an affidavit to that effect,
submit that affidavit to the Secretary of Health and Human Services
within 10 days, and forgo reimbursement from all other Medicare
patients for two full years. Since the enactment of this bizarre
law, subsequent litigation and regulatory modifications have
softened its impact, but it nonetheless remains on Medicare's
Canadian Supreme Court decision is a landmark case for one reason:
It reaffirms that personal freedom is the key value in health care
policy. In the continuing debates over health care access, cost,
and quality, American policymakers should not lose sight of why
Robert E. Moffit is
Director of the Center for Health Policy Studies at The Heritage
TURNER: Bob and I are honored to host Dr. Jacques
Chaoulli, the courageous physician who challenged restrictions in
Canada's government-run health care system--and won. The Supreme
Court of Canada struck down on June 9, 2005, a Quebec law that had
banned private health insurance and private payment for services
covered under Medicare, Canada's socialized health care
Chaoulli was joined in the case by his patient, Montreal
businessman George Zeliotis, who was forced to wait a year for hip
replacement surgery. Zeliotis, 73, tried to skip the public queue
to pay privately for the surgery but learned that was against the
law. He argued that the wait was unreasonable, endangered his life,
and infringed on his constitutional rights. The two fought their
case all the way to the Canadian Supreme Court, which voted 4-3
that they were correct.
"Access to a waiting list is not access to
health care," the court said in its ruling.
case involved the Quebec Hospital Insurance Act and technically
applies only to that province, but it is a wake up call to the
other provinces, where private insurance also is banned. "This is
indeed a historic ruling that could substantially change the very
foundations of medicare as we know it," Canadian Medical
Association president Dr. Albert Schumacher said after the ruling.
The ruling means that Quebec residents can pay privately for
medical services, even if the services also are available in the
provincial health care system.
court split 3-3 over whether the ban on private insurance violates
the Canadian Charter of Rights and Freedoms (similar to our Bill of
Rights). Clearly this was a difficult decision since the court
delayed a year in issuing its verdict.
United States has been a safety valve for Canadians unwilling or
unable to tolerate the long waits for medical care in their
country. Now, the Canadian government must face directly complaints
about the long waiting lines, lack of diagnostic equipment, and
restrictions on access to the latest therapies, including new
an almost laughable defense, lawyers for the government argued the
Canadian Supreme Court should not interfere with the government's
health care system, considered "one of Canada's finest achievements
and a powerful symbol of the national identity." Dr. Chaoulli had
persevered in spite of two lower court rulings against him. They
had ruled the limitation on individual rights was justifiable in
order to prevent the emergence of a two-tier health care
Chaoulli was born in France and obtained his medical degree from
the University of Paris, before moving to Canada in 1978. He has
practiced medicine in Quebec since 1986. Welcome, Dr. Chaoulli.
Grace-Marie Turner is
President of the Galen Institute.
CHAOULLI, M.D.: I am happy to be with you today, and I
would like to thank The Heritage Foundation and the Galen Institute
for hosting this public briefing.
I did in Canada, anybody willing to do it could have done. My
background is quite simple.
was born in France. During the time I was studying medicine there,
I never heard about patients suffering or dying on a waiting list.
After graduating in 1978 from the Paris University school of
medicine, I moved to Canada. To my great surprise, while practicing
as a physician during the 1990s, I saw patients suffering and dying
on waiting lists under the Canadian single-payer health care
system. Although I didn't have any knowledge of law at the time, I
already felt it was unacceptable. Actually, I was even more
surprised to see that nobody stood up against the government to
claim that those patients were victims of an infringement upon
their human rights.
also felt the Canadian legal community was not up to speed. So, I
studied the law, I studied the health care systems from around the
world, and I studied more in the field of some medical and surgical
specialties for which I noticed important problems of access to
timely and quality health care services in Canada.
launched the court case you know about, representing myself all
along, and invited a patient, Mr. Zeliotis, to join me in the legal
proceedings as a co-plaintiff, until my legal arguments eventually
prevailed before the Canadian Supreme Court.
to the end, most of the commentators thought I would fail. But on
June 9, 2005, I won. Across Canada, the elite was astonished.
Dean of Canada's Osgoode Hall law school, Patrick Monahan, was
quoted by Canada's National Post three days ago as saying, "I
didn't expect a majority of the court to uphold Chaoulli's
constitutional law professor from the same law school, Jamie
Cameron, was quoted as being "surprised at the judges' activism....
It's a huge step for Section 7 [of the Canadian Charter of Rights
and Freedoms}. I think that the constraints that used to apply to
Section 7 have pretty much blown out of the water."
is significant that I won against a number of lawyers and top
expert witnesses representing the government side. For example,
during the trial I cross-examined Professor Theodore Marmor from
Yale University. Justice Deschamps, concurring with the majority,
rejected his testimony, on paragraphs 63, 64 and 67 of the
many years, in survey after survey, a majority of Canadians said
that they were in favor of private health care alongside the public
system. After my victory, ordinary people felt a sense of relief to
hear that, for the first time ever, the highest court in the land
condemned the Canadian single-payer health care system for causing
situations in which patients suffered and died on waiting lists, in
violation of the rights to life, liberty, and security protected by
Section 7 of the Canadian Charter of Rights and Freedoms.
result of this historic judgment, Canadian legal scholars have now
classified Canada's legal history about rights and freedoms into
two distinct periods: before Chaoulli and after Chaoulli.
many years, I have been studying constitutional law, most of the
time alone, and during a short period of time, in year 2000, as a
full-time law student in Canada. As a law student, I argued against
most of my Canadian professors of law, whose interpretation of the
Canadian Charter of Rights and Freedoms was opposed to my own
interpretation. Ironically, five years later, in 2005, the Canadian
Supreme Court upheld my own interpretation of that Canadian Charter
of Rights and Freedoms.
my knowledge, it is the first time that a court has invalidated a
government health care action that had effectively resulted in the
suffering or deaths of individuals.
Canadian Supreme Court ruled that a state may not force an
individual to endure poor quality health care services or
unreasonable waiting times for medically required services, and it
cannot prevent average individuals from getting access to private
Opportunity for Private Health Care
Canadian Supreme Court ruling was like the fall of a second Berlin
Wall. It opens up a unique opportunity, in the United States and in
several OECD countries, to counter what is called in the United
States "liberal," and what I call "socialist," lobbies that are
pushing their agenda for socialized medicine.
commentators believe that this ruling would apply only to Quebec
and not to the rest of Canada. I respectfully disagree with their
opinion. In my view, a proper reading of the judgment leads to the
conclusion that similar legislation in other Canadian provinces may
already be considered as violating Section 7 of the Canadian
Charter of Rights and Freedoms, which protects the right to life,
liberty, and security. For that reason, in my view, there is no
need to launch additional legal challenges in other Canadian
About private hospitals, I was asking the
court to declare my right to establish a private hospital in
Montreal. The majority of the Canadian Supreme Court gave me the
green light to go ahead in establishing a private hospital, when
Justice Deschamps, concurring with the majority, ruled at paragraph
51 of the judgment that: "the Minister may not refuse to issue a
permit solely because he or she wishes to slow down the development
of private institutions that are not under agreement," and when at
paragraph 54, she said: "Not only are the restrictions real but Mr.
Chaoulli's situation shows clearly that they are."
Practically speaking, that ruling opens
the door for a parallel private health care system in Canada
running alongside the continuing socialized and compulsory Medicare
program run by the "States" or "Provinces," as in other countries
of Northern and Southern Europe, Australia, and New Zealand.
Obviously, in terms of public health
policy, such a result is not good enough. Those who are unable to
pay twice, through general taxation and the additional cost of
parallel private health care services, will continue to fall
through the cracks of a deficient Medicare program.
a long time, several experts have suggested that legislators should
permit individuals to opt out of a state's compulsory Medicare
program. But as you well know, legislators from around the world,
including here in the United States, have to deal with a potato
which is not only hot, but also burning!
Lessons for the U.S.
victory is particularly important for American people, since they
are facing important health policy issues, both at the federal
level, regarding the Medicare program, and at the state level. The
states of Vermont and California have engaged, or are engaging
themselves, in the process of establishing a single-payer health
care system which--there is no doubt in my mind--shall lead, like
in Canada, to a situation whereby some patients will suffer and die
on waiting lists.
believe that, were it not for particular interest groups pushing
for their own agenda, most people around the world would reject
such a health care system that inevitably leads to suffering and to
2002, particular interest groups thought they could introduce a
single-payer health care system in Oregon, through the initiative
and referendum called Measure 23. But three-quarters of the
population of Oregon rejected that model. Then, legislators in
Vermont passed a bill establishing a single-payer system.
few weeks ago, the Senate of California passed a bill that is even
more extremist, in the sense that, like in Quebec, it bans private
health insurance covering services already covered under a new
California State Universal Medicare program. That bill is likely to
pass the Assembly as well. Maybe the governor of California will
use his veto power to block that bill, but such a veto would last
only as long as that same governor would remain in power. What
about the people of California if the bill is passed again and the
next governor fails to the veto that bill?
Canada, in the United States, and elsewhere, liberal groups should
be confronted with the failure of socialized medicine, which the
four majority justices exposed in the so-called Chaoulli judgment.
Moreover, and even perhaps more importantly, they should be
confronted with the terrifying opinion of the three dissenting
justices. Although the dissenting justices acknowledged that some
patients die as a result of the state monopoly, they went on to say
that the state monopoly is necessary in order to avoid what they
call an unfair situation, whereby those able to pay in a parallel
private health care system would save their own life, while those
unable to pay would have to wait in the public sector.
the first time in Canada, a Supreme Court Justice criticized
publicly a dissenting colleague sitting on the same bench. Justice
Deschamps, about whom I have spoken, wrote at paragraph 16 of the
judgment: "The debate about the effectiveness of public health care
has become an emotional one.... The tone adopted by my colleagues
Binnie and Lebel JJ. is indicative of this type of emotional
Also, she clearly challenged the view of
the three dissenting justices, when at paragraph 85, she said: "It
must be possible to base the criteria for judicial intervention on
legal principles and not on a socio-political discourse that is
disconnected from reality."
make no mistake about it. Although the Berlin Wall fell in 1989,
many groups driven by a socialist ideology are still very active in
all the OECD countries, including here in the United States, and
they share the view of the three dissenting justices I have
might hear from the legislators of Vermont that the Chaoulli
judgment is irrelevant to them since the bill they passed doesn't
ban private health insurance. They would be right to say that their
bill doesn't ban a parallel private health care system. Still, down
the road, like in Canada, in the UK, and in several other OECD
countries, I believe some patients from Vermont shall inevitably
suffer and die on waiting lists if the single-payer health care
system is to be implemented in that state.
Justice Deschamps had it right when she
wrote, at paragraph 96: "Given the tendency to focus the debate on
a socio-political philosophy, it seems that governments have lost
sight of the urgency of taking concrete action. The courts are
therefore the last line of defence for citizens."
suggest her comment applies as well to the United States and to
many countries around the world. I suggest the time has come to
take advantage of this historic judgment in order to inform people
in Canada, in the United States, and elsewhere about the
consequences in terms of human suffering from letting legislators
adopt, or maintain, single-payer health care systems.
feel close to the American people because of our common love for
liberty and responsibility.
long time ago, in 1776, the Virginia Declaration of Rights, drafted
by George Mason and Thomas Ludwell Lee, showed the world what
liberty means. I am afraid, within Western democracies, many people
have forgotten the true meaning of liberty.
have a dream. My dream is to show the world how to get rid of a new
and subtle form of tyranny hidden under the cover of a Welfare
State's compulsory health care program.
dream is remind the world of the original sense of liberty that the
founding fathers of the United States of America envisioned for
generations to come, not only for American people, but also for
people around the world.
Jacques Chaoulli, M.D., is
a Senior Fellow at the Montreal Economic Institute.