American Journal of Law & Medicine

If We Can Force People to Purchase Health Insurance, Then Let's Force Them to Be Treated Too


Proponents of the 2010 Patient Protection and Affordable Care Act (PPACA) (1) justify the Act's mandate that uninsured individuals either purchase a minimally defined health insurance policy ("Maintain Minimum Essential Coverage") or pay a fine, (2) as a necessary and proper exercise of Congress's express constitutional power to regulate interstate and foreign commerce. (3) The United States Supreme Court will decide the correctness of that highly debatable position (4) during its spring 2012 session. (5)

Assuming, without by any means predicting, (6) that the validity of all parts of the PPACA--including the individual insurance mandate--is upheld, the Court's (likely multiple) opinions will constitute a major development in the evolution of American constitutional jurisprudence, even if Congress subsequently repeals specific sections of the legislation. (7) Several commentators have expressed concern about the ramifications of a judicially validated PPACA for attempts by the government, especially through the mechanism of Comparative Effectiveness Research (CER), (8) to limit or ration particular forms of potentially beneficial medical care for some or all patients. (9) Others dismiss concern about healthcare rationing as one of "the two [Tea Party] bogeymen [along with socialized medicine] that the freedom of health would be most likely to prohibit." (10) Thus far, however, little if any attention has been paid to the opposite side of the coin. (11) Does judicial approval of congressional authority to require the purchase of health insurance on interstate commerce grounds necessarily translate into congressional authority to positively affect interstate commerce? Specifically, would such a holding imply judicial approval of federal statutes mandating that individuals submit to receive certain forms of demonstrably cost-effective medical treatment?

This Article addresses the possibility of government-mandated medical treatment as a logical sequel to a judicially sanctioned PPACA. Part II identifies the key issues involved in challenges to the PPACA's constitutionality, focusing on the manner in which many public health scholars have framed Congress's rationale for enacting the legislation. Part III assumes that the Supreme Court will endorse the public health rationale undergirding the PPACA. This Part extends that public health rationale to potential federal mandates that individuals undergo particular forms of medical intervention designed to improve their individual health and society's well-being. Objections to such federal mandates of medical treatment are noted, but rejected. Part IV consists of a summary concluding that if Americans do not have a constitutional right to refuse to purchase an individual health insurance policy, then they do not have a legally enforceable right to refuse specific medical treatments.


The most important legal challenges to the individual health insurance mandate provision of the PPACA are motivated by the challengers' concern about an infringement of Americans' liberty interests, a concern that has been disparaged by a number of PPACA supporters. (12) The challengers' chief argument in the courts, however, has taken the form of a claim that Congress exceeded its express constitutional authority in enacting the individual mandate. (13) More particularly, challengers submit that Congress's power to regulate interstate commerce (14) extends (albeit extremely broadly) (15) only to provisions regarding actions by regulated persons or entities involving goods and services that are traded interstate, and that an individual's unwillingness to purchase health insurance represents a form of inactivity over which Congress has no lawful control. (16) Thus, Congress's "claimed power [in enacting the PPACA under a Commerce Clause rationale] is tantamount to a national police power inasmuch as it lacks principled limits." (17) Critics of the PPACA contend further that the individual mandate provision cannot be justified alternatively on the basis of any other constitutionally enumerated congressional power, including the power to tax to raise revenues for the general welfare. (18)

Defenders of the PPACA reject the activity/inactivity dichotomy, at least in the healthcare context, as it might purportedly apply to Commerce Clause analysis. Their position, put succinctly, is as follows:

   With rare exception, at some point every individual will require
   health care services. Therefore, the decision of many individuals
   not to purchase coverage--whether consciously or not--presents a
   free rider problem. These individuals will generally receive care,
   whether or not they are able to pay toward that care. For those
   individuals for whom health coverage is unaffordable, there is a
   societal obligation to create remedies. On the other hand, for
   those individuals who could afford to purchase coverage, yet choose
   not to, it should be clear that "free riding" cannot be sanctioned.

Thus, according to this view, by exposing society to the risk of bearing the financial costs of one's illness or injury because one has failed to purchase health insurance, that person's failure to purchase coverage impacts the goods and services traded in interstate commerce.

A number of leading public health law commentators defend the validity of the PPACA as a legitimate exercise of Congress's Commerce Clause authority by essentially reframing the question, moving beyond a narrowly focused concern about precisely demarcating the blurred line between action and inaction. The public health rationale for the PPACA as constitutionally proper is exemplified by the statement:

   In cultural terms, the Court will have to decide whether PPACA is
   about preserving a fiscally and otherwise healthy collectivity--the
   nation--or about preserving an individually defined bundle of
   rights. Perhaps subconsciously, the Justices must frame the
   relationship between government and individual access to the health
   care system as primarily either about collective governance or
   about fostering individual self-governance. Fundamentally, the
   legitimacy of the individual mandate turns on whether the Court
   will accept that a sacrifice of individual economic liberty is
   justified by an obligation to contribute to the common good that
   accompanies membership in the American political community. (20)

According to this view, the PPACA must be understood as

   represent[ing] a determination that a major national
   problem--access to health care--requires a national solution, and
   that the solution can work only under conditions in which everyone
   has health insurance. It further represents a determination that
   achieving this aim through the market, rather than through a direct
   government provision of health care, is the best approach. (21)

Stated succinctly, "From this perspective, the dispositive constitutional question is not whether Congress' [sic] interstate commerce power extends to commercial inactivity, but rather whether it authorizes Congress to regulate individual decisions with significant economic ramifications in the interests of protecting and promoting the public's health." (22) Put differently, "[t]he activity/inactivity distinction makes no sense for individual choices, like declining health insurance, that have direct and significant economic and health-related costs for the entire population." (23) In sum, the argument is that, when it comes to Commerce Clause application, "health care is different" (24) and legislation intended to produce social or collective benefits is entitled to special respect. (25)


The Supreme Court has been asked to hold that "population-based arguments can be used to justify PPACA's [individual insurance] mandate" and that the "PPACA's mandate . …

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