You’d run into serious issues . . . . the 8th Amendment requires that prisoners be given the surgery–so prisoners have a right to paid-for treatment that ordinary people cannot get?

If the surgery were, of course, far more risky than say a pill (if one is ever developed), then maybe.

But no, states cannot ban ordinary medical procedures. . . .

Actually, I think a state could ban cataract surgery under the US constitution, given the way the law is interpreted today. All they would need is a “rational basis”. The US government could probably due it, citing the commerce clause as the authority. It is an interesting question.

Note, the reason states cannot ban abortion relates to some sort of penumbra of privacy rights in the US constitution. Those rights do not necessarily translate to cataract surgery.

Further to my last—the challenge, and I assume that the question is posed as such, seems to me to be part of the unfortunate view (at least in my opinion) that unless a court says X, the question is really open. At the end of the day, do we need to rely on courts to tell us that governors (putting aside the current crisis) or legislatures cannot prohibit medical care? I think we’ve gone too far down that route. And the corollary to your challenge is that we live in a society that allows government to do X until a court says no. By that rationale, the sheriff in Wisconsin is in the clear for ordering the girl to take down her post about being a COVID-19 sufferer because, you know, no court has ever said that in a pandemic, speech that might spark fear can be banned.

Whitmer also, early on, forbade the use of HCQ in the treatment of COVID-19. Whatever one thinks of that treatment–clearly some doctors think that it’s a good idea to prescribe it–and she had no business banning it.

Well, prisoners have it, and the abortion rights decisions emphasize that abortion is medical care.

And seriously, could a state ban, for example, cataract surgery?

Bob

This, in my view, invalidates the ENTIRE order because the power to restrict the freedom of Americans can only be justified by health reasons alone. (And even then, I don’t think Jacobson goes this far.) But even if it didn’t invalidate the entire order, Whitmer has still violated the constitutional rights of Michiganders. The order’s allowance of abortion,but not so-called elective procedures, is irrational. The right to seek medical care is a constitutional right and denying people medical care for a prolonged period of time is plainly unconstitutional–exempting abortion from that just points up the wrongfulness.

Whitmer’s order plainly goes far beyond any rational response to the health crisis. Of course, people will say, “Gee, why do you want to golf while people are suffering? And society has more important business than your ‘elective procedure.'” Such a response, in a rights based society, is deeply offensive. Rights are just that, rights. And they cannot be arbitrarily taken away.