Right to Refuse – Worlds apart – the story of HB866

For many of those impacted, not simply inconvenienced but severely impacted by life-threatening and life-changing events that came out of the 2020 pandemic, HB866 was a no-brainer. It was a common-sense, no-nonsense bill. Yet, it failed—and failed by a large margin. Why is that?

Understanding HB866

Representative Beryl Amedee (R 9/10) filed HB866, titled the “conscientious right to refuse medical services.” It provided for just that—a right to refuse medical treatment—a principle we are accustomed to. That’s because it has been accepted and tested at various levels of government for decades.

The bill defined a “political subdivision,” “public official,” and “state agency” and provided that:

No business, employer, person, political subdivision, public official, healthcare provider, or any other entity shall do any of the following based on a person’s refusal to receive any biologic, vaccine, drug, pharmaceutical, medical device, gene therapy, DNA-based product, or RNA-based product which has been Authorized for Emergency Use or is declared a countermeasure through the Public Readiness and Emergency Preparedness Act for reasons of conscience, including but not limited to religious convictions:

Deny or terminate employment.

Deny a service, including a public service to the individual.

Deny access to commerce.

Segregate the person.

Penalize the person or use financial coercion.

Discriminate against the person, including the imposition that creates an unreasonable burden on the individual.

The bills went on to discuss fines and legal remedies and provided a carve-out for hospitals and nursing facilities, but that is the core of the bill. Despite making it out of the House Civil Law and Procedure Committee without any objection, it failed on the House floor by a vote of 38 yeas and 58 nays.

Sovereignty vs. Supremacy – an age old question

The debate on the House floor was extremely limited on this measure. However, there was a very interesting exchange between Representative Brach Myers (R 6/10) and Representative Raymond Crews (R 8/10). Myers went to the well in opposition to the bill. To support his position, he spoke of the thousands of patients/residents he is responsible for as an administrator in a healthcare setting. Myers’s main contention is that the bill ‘creates confusion,’ which arises when the state goes beyond what the federal government provides.

Following his speech, Myers fielded questions from members of the House, including Representative Crews. At one point, Crews asked whether it is essential to have structures and systems in place to ensure mistakes and oversights don’t occur again. Myers believed the ‘Federal government and CMS (Centers for Medicare and Medicaid Services) need to work with the federal legislature to provide guidance.’ Myers continued by stating that he believes there is an issue with ‘an entity being reimbursed at a federal level and being regulated at a state level.’

Joseph Stagni (RINO 3/10) referred to the Amedee bill as being ‘misdirected’ and part of a ‘wish list.’ Stagni stated that this issue must ‘be addressed by (federal) Congress.’

Raymond Crews asked Brach Myers a fundamental question: “Who is sovereign, the States or the Federal Government?” Myers would reply: “There is some confusion there” and that it is “not relevant to his opposition of this bill.” Crews replied: “I think it is foundational.”

Raymond Crews is spot-on

What Raymond Crews illustrated in his brief exchange with Brach Myers is a symptom of a much bigger problem in our so-called Federal Republic. The position Myers took is not uncommon. It is a position that our failing education system has strengthened. That system pushes government propaganda and is supported by our co-opted free press, which no longer reports news. Instead, that once-sacred institution takes a biased view of events to support a specific political agenda. Based on the House floor vote, this is also a position that most of our legislators share. But it is one, as Crews pointed out, that is foundational and can easily and quickly be debunked by looking at our founding documents.

Article 1, Section 26 of the Louisiana Constitution addresses the issue of state sovereignty. It reads:

The people of this state have the sole and exclusive right of governing themselves as a free and sovereign state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled.

Further, the Tenth Amendment to the Constitution of the United States, probably one of the most important provisions of our federalist tradition, provides the constructive framework for the rest of the document. It reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

So where exactly in the Constitution (or any amendment) did the people of the sovereign states delegate to the central authority powers related to mandating the medical decisions of individuals? They didn’t! Nor did they delegate any purview of healthcare, education, and various other topics. The misappropriated powers of the central government, a wish list (to use Stagni’s phrase) for federal superiority over the states, is maintained by the federal judiciary. But the federal government is not supreme!

Supremacy Clause

Big-government types typically cite the “supremacy clause” found in Article 6, Clause 2 of the Constitution to support their belief. It says:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

There it is! Well, not quite. Many overlook the fact that something must be made in pursuance of the Constitution for it to constitute the “supreme Law of the Land.” Again, the states have never delegated any authority regarding individual healthcare decisions to the central authority.

But it is “necessary and proper!” NO! Article 1, Section 8, Clause 18, states:

[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

A law that provides for an area of authority that was never delegated to central authority can’t be necessary and proper.

The General Welfare Clause and The Commerce Clause

The arguments will then move on to Article 1, Section 8, Clause 1, which states:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; . .

Or Article 1, Section 8, Clause 3, which states:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

The expansive use of these clauses by the federal judiciary upheld Obamacare by calling it a tax within the Congressional authority to “collect taxes.” They have also allowed the intrusion of federal authority into almost every aspect of our lives, making what was supposed to be a “limited government” into the most extensive state the world has ever seen.

The federal bribery scheme

No, we are not discussing the one involving the 15th Judicial District Attorney’s Office. Do you hear that? Silence! Maybe it’s the calm before the storm!

We are talking about when the federal government robs the people of the individual states of their hard-earned dollars and then sends it back to the states to bribe their compliance with some regulation in an unauthorized federal program. As Chief Justice Roberts stated in National Federation of Independent Business v. Sebelius, it is where “persuasion gives way to coercion.” It is the same thing Brach Myers spoke about when he addressed entities being reimbursed at the federal level but regulated at the state level. Myers just didn’t connect all the dots.

Individual Rights

Despite these ridiculous conclusions, which have become the precedent that holds the usurped federal power structure together, nothing prevents the States from providing rights more expansive than those found in the federal Constitution. This is why our Louisiana constitution contains the freedom to hunt, fish, and trap. It also includes other rights relevant to this topic, such as:

• The Right to Individual Dignity
• Freedom from Discrimination (including for religious reasons) and the
• Right to Humane Treatment

Then there is that pesky clause called “Unenumerated Rights” found in Article 1, Section 24, which states:

The enumeration in this constitution of certain rights shall not deny or disparage other rights retained by the individual citizens of the state.

So, in the end, did we, as individuals, expressly surrender to our state government by ratifying our state constitution purview over our individual medical decisions? No! And did the state of Louisiana, in acceding to the compact between the states under the federal constitution, surrender to the central authority purview over our individual medical decisions? Again, No! Although confusing to some, HB866 was not only proper, it was the right thing to do!

List of lawmakers who voted in favor of HB866:

• Danny McCormick (R 10/10)
• Josh Carlson (R 9/10)
• Julie Emerson (R 9/10)
• Beryl Amedée (R 9/10)
• Kathy Edmonston (R 9/10)
• Dodie Horton (R 9/10)
• Chuck Owen (R 9/10)
• Tony Bacala (R 8/10)
• Raymond Crews (R 8/10)
• Michael Echols (R 8/10)
• Gabe Firment (R 8/10)
• Brett Geymann (R 8/10)
• Rodney Schamerhorn (R 8/10)
• Phillip Tarver (R 8/10)
• Phillip DeVillier (R 7/10)
• Bryan Fontenot (R 7/10)
• Mike Johnson (R 7/10)
• Laurie Schlegel (R 7/10)
• Debbie Villio (R 7/10)
• Mark Wright (R 7/10)
• Les Farnum (R 6/10)
• Rhonda Butler (R 6/10)
• John Illg (R 6/10)
• Nicholas Muscarello (R 6/10)
• Joseph Orgeron (R 6/10)
• Lauren Ventrella (R 6/10)
• Jason Dewitt (R 6/10)
• Roger Wilder (R 6/10)
• Kimberly Coates (R 6/10)
• Shane Mack (R 6/10)
• Jay Galle (R 6/10)
• Kellee Hennessy Dickerson (R 6/10)
• Emily Chenevert (R 6/10)
• Peter Egan (R 6/10)
• Brian Glorioso (R 6/10)
• Mike Bayham (R 6/10)
• Dennis Bamburg, Jr. (R 6/10)
• Beth Billings (R 6/10)

List of lawmakers who opposed HB866:

The lawmakers who were absent:

• Jack McFarland (R 7/10)
• Troy Romero (R 6/10)
• Chance Henry (R 6/10)
• Jeff Wiley (R 6/10)
• Travis Johnson (D 4/10)
• Adrian Fisher (D 4/10)
• Denise Marcelle (D 3/10)
• Aimee Freeman (D 3/10)
• Delisha Boyd (D 2/10)

What the future holds for bills like this

We can all agree that it’s wrong for the government to force someone to undergo a potentially life-altering medical procedure. Then, there is the further nuance of “What is government?” Do the hundreds of millions of taxpayer dollars flowing into the medical industry functionally convert them into a state actor? Where’s the line that, when crossed, converts a common sense safety procedure into coercion?

We’ve talked to Brach Myers several times about this bill and others on this topic. This is his industry, after all. Without someone like him championing these freedoms, passing this kind of legislation will continue to be complicated. He agrees with the concept, but the more complex details must be worked out.

Myers says this particular bill doesn’t consider the ripple effect and confusion it would have on providers responsible for the livelihood of thousands of their employees and the well-being of twice as many patients under their care. It’s not as easy as someone like Hobby Lobby not to comply. When your reimbursement for the services you provide (which supports your payroll) can be withheld if you don’t comply, you are forced to decide whether or not to shut the doors (loss of jobs and loss of patient care). So much of the focus was on providers during this session. We are in a heavily regulated sector governed mainly by federal guidelines and, as a state, almost entirely dependent on federal funding.

It’s going to be tough going

While some complexities involve securing federal money, he said others involve patient safety in medical emergencies. One example is a doctor or nurse who wants to exercise their new rights by performing surgery without gloves. Indeed, this seems to be an odd scenario, but still, one he says is within the realm of possibility under HB866.

In these conversations, Myers has said there is room for legislative improvement in medical freedom rights. He plans to work closely with authors of such bills in the future. Common ground exists, and he’s confident it can be found. “I lived it and hope no one ever has to face it again. That means changes to federal rules and oversight unless we plan on becoming a very healthy state and finding a way to self-fund our healthcare needs.”

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