The Constitutionality of Health Reform’s “Individual Mandate”

 

As noted in my blog post last week (“The Beginning of Health Reform“), pushback against the federal Patient Protection and Affordable Care Act was swift.  Members of nearly 40 state legislatures have proposed legislation or constitutional amendments limiting or opposing certain provisions of the Act, with most of the proposals targeting the Act’s requirement that individuals have health insurance coverage or subject themselves to financial penalties (the “individual mandate”).  Virginia, Idaho, and Utah are the only states thus far to have enacted new statutes (each of which more or less prohibits compliance with any law that imposes a fine on an individual for declining to enter into a contract for health insurance coverage), and their validity is sure to be challenged in court on Supremacy Clause and other grounds.  Idaho has also passed a non-binding resolution “urging Congress to take action forthwith to amend the United States Constitution by adding a Twenty-eighth Amendment to provide that Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizen who declines to purchase or participate in any health care insurance program.”

Most dramatic, though—if drama is measured by the amount of media coverage generated—is the lawsuit initiated by the Attorney General of Florida and joined by 19 other state Attorneys General maintaining that several components of the health reform law violate Article I of and the Tenth Amendment to the U.S. Constitution.  The argument that is drawing the most attention concerns the constitutionality of the Act’s individual mandate.  Like the contention at the heart of the state proposals, the Florida lawsuit argues that the Act’s requirement that individuals have health insurance coverage or pay a tax penalty amounts to an unconstitutional mandate that cannot be upheld under the Constitution’s Commerce or Spending Clauses.

The lawsuit seems unlikely to ultimately succeed, given the procedural and substantive hurdles it has to clear. 

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The Beginning of Health Reform

On March 23, 2010, President Obama made history by signing into law the Patient Protection and Affordable Care Act, a landmark statute that aims to fundamentally reform virtually all aspects of the nation’s health care system. The health reform law is fairly viewed as the most sweeping social policy legislation since Lyndon Johnson’s Great Society initiatives.

There are many specific goals of the statute, including expanding health insurance coverage, increasing access to health care services, improving health care quality, enhancing the value of care received, eliminating racial and ethnic health disparities, strengthening the public health infrastructure, expanding and diversifying the health care workforce, and encouraging consumer and patient wellness at home and at work. More fundamentally, however, the goal of health reform is to restructure the current health care system into one that operates more fairly, more efficiently, and with more accountability on the part of the many different stakeholders involved.

Although passage of the law was 14 months in the making, the statute itself is merely the first step. Next comes the truly challenging part: translating the enormous (and enormously complex) law into a transformed health system. 

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Age Discrimination in Health Care

Among other things, the recent “death panel” controversy highlights our collective unease with the thought of elderly people being denied needed medical care based on someone else’s decision that their lives are not worth saving.  Yet, even without death panels, much research demonstrates that the elderly already suffer a great deal of discrimination in the health-care system, from the use of demeaning or patronizing language by medical personnel to disqualification from experimental treatments to dismissive responses regarding health complaints.  However, legal remedies for age discimination in health care have proven elusive.

Phoebe Weaver Williams explores ageism in health care, as well as potential remedies under the Age Act of 1975, in a pathbreaking new article recently published in the Marquette Elder’s Advisor.  She argues that legal theories developed in connection with employment discrimination litigation, such as the hostile environment theory, might be adapted for use in the health-care context.

Entitled “Age Discrimination in the Delivery of Health Care Services to Our Elders,” Phoebe’s article was published at 11 Marq. Elder’s Advisor 1.  The abstract appears after the jump. 

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