By Amanda Frost, Professor of Law, American University, Washington College of Law
Opponents of the health care reform law argue that it takes away their liberty to make choices about health care. In their brief to the Supreme Court, the twenty-six states challenging the constitutionality of the so-called individual mandate – the provision requiring those who can afford it to purchase health insurance – claim that it undermines “the very liberty that the Constitution was designed to protect.” But in fact the legal questions before the Court have almost nothing to do with liberty when it comes to health care or health insurance, as the challengers’ own concessions make clear.
The states challenging the law do not deny that almost everyone needs health care at some point in their lives, and they even agree that the government can make people pay for health care through health insurance. They take issue only as to when the government can compel that purchase, arguing that no one can be forced to buy insurance before they need to pay for health care. The challengers also admit that the federal government could force everyone to pay higher taxes to cover the health care costs of those without insurance. Nor do they deny that the federal government can require doctors to provide emergency care to those without health insurance, and then to allow those doctors to pass along the costs of that care to the rest of us through higher insurance premiums and taxes – indeed, that is how our system currently operates. Finally, the challengers acknowledge that the states themselves could pass laws mandating that all their citizens purchase health insurance, as Massachusetts has done.
All that is really at stake, then, is whether the federal government has the constitutional authority to require individuals to purchase health insurance before they need to pay for their health care. That “freedom” seems far from the heady liberty interest that opponents of the law claim this case is all about.