It's been 48 hours - am I any smarter now?
Having had another day to reflect on Chaoulli, I don't think there's much I'd change about my original take, except maybe that I did oversimplify the reasons underlying (and hence the sturdiness of) the concurring opinion.
McLachlin & Major did not merely conclude that the prohibition on private insurance fails to meet the "minimum impairment" test under Oakes, but also that it fails to meet the "rational connection" test, and furthermore:
Indeed, we question whether an arbitrary provision, which by reason of its arbitrariness cannot further its stated objective, will ever meet the rational connection test under R. v. Oakes
So I got that goin' for me, which is nice(*). And a bit of triumphalism is certainly in order. The opposite ruling by the SCOC would have further entrenched the status quo, if that's even possible. I'd say the practical implications of the ruling are considerable: it would appear to me that any government seeking to restrict private health care in any way will have to provide empirical evidence that it is necessary to protect the public system, as the rhetorical arguments against a monopoly have carried the day. Also, "Who's laughing now, bitches?" is the funniest thing I read Thursday.
But on the whole, the more I think about the ruling, the more depressed I get.
I find it profoundly damaging to my dignity as a human being when I think about this: my right to look after my own body (such as it is) derives not from any enduring principles of humankind, nor from my country's constitution, but from the government's incompetence in looking after it for me.
I also find it demeaning to have it spelled out for me that my rights to liberty do not include freedom of contract, and that I certainly do not have "the right to spend my own money" -- not just in the context of health care or some other conflict with government's objectives, but period.
But, what the hey, right? btw, for a very cogent analysis of the decision supporting the dissent, see James MacDuff's work at Ahab's Whale.