If We Can Force People to Purchase Health Insurance, Then Let's Force Them to Be Treated Too
Kapp, Marshall B., American Journal of Law & Medicine
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 position4 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 wellbeing. 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.
II. RATIONALES FOR THE INDIVIDUAL INSURANCE MANDATE
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 commerce14 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. …