Raising Lochner: Health Care Opponents Champion the Past

May 30, 2012

by Jeremy Leaming

The arguments lodged against the health care law’s minimum coverage provision have been described by constitutional law experts as radically libertarian or terribly misguided. But during oral argument before the Supreme Court, the right-wing bloc, led by Justice Antonin Scalia appeared eager to endorse the challengers’ arguments against an integral provision of the Affordable Care Act. We’ll likely know sometime in June whether the high court’s conservative wing was indeed persuaded by the challengers’ arguments.

In a guest post for Balkinization, Rob Weiner, a partner at Arnold & Porter LLP, provides greater detail to the attacks on the health care law’s minimum coverage provision writing they “reflect an effort to codify nostalgia as legal doctrine.” 

The “most obvious throwback” is the liberty argument, Weiner says. Opponents of the health care law attack the minimum coverage provision as a serious affront to liberty. The minimum coverage provision will require some Americans starting in 2014 to purchase a minimum amount of health care insurance.

The affront to liberty, Weiner writes “is the right not to obtain insurance – by any other name, freedom to contract.”

In the Supreme Court’s 1905 Lochner v New York opinion, the majority held that the freedom to contract was “part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.” Weiner notes that Lochner thus barred New York from regulating conditions of some workers. And in its 1923 Adkins v. Children’s Hospital opinion, the Court relied on this so-called freedom to contract to protect employers from adhering to the minimum wage law.

That precedent has long been abandoned. Weiner writes:

But that was in 1923. In the modern era -- generously, the last 75 years -- the Supreme Court repudiated these cases and gave Congress broad deference in the realm of economic regulation. Starting in 1937, the Court in West Coast Hotel Co. v. Parrish ended the primacy of contract rights. “What is this freedom?,” Chief Justice Hughes asked there. “The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. . . . Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.” No court has suggested that the minimum insurance coverage requirement in the Affordable Care Act violates due process, and any such claim would be frivolous. But that has not stopped the challengers of the Act from seeking to advance this claim indirectly by importing the jurisprudence of Lochner, Adkins, and similar legal relics into the case law under the Commerce Clause.

The opponents of the health care law, Weiner concludes are fighting not only to tear down health care reform, but to bring back into “modern jurisprudence doctrines long ago cast aside as outmoded ….”