Is the health care law constitutional? / Yes, it expands liberty

Share with others:


Print Email Read Later

According to Rick Santorum, unless repealed by Congress or revoked by the Supreme Court, health care reform -- i.e., "Obamacare" -- "will be the end of liberty in our country." Mitt Romney attempts to distinguish Obamacare from the nearly identical Romneycare he enacted as governor of Massachusetts on the basis of pre-Civil War notions of unfettered states' rights.

Central to the debate over federal health care reform is the "individual mandate." Beginning in 2014, the law will impose a penalty on adults who can afford health insurance but choose not to buy it.

The mandate was not intended to punish uninsured Americans for making bad decisions. It was needed to preserve the private market for insurance as new rules kick in to prohibit denial of coverage because of pre-existing conditions and termination of coverage in the face of catastrophic illness. In a nutshell, the mandate spreads the risk, thereby reducing the cost, of expanded health coverage.

Mr. Santorum complains that, regardless of its benefits, the individual mandate "is not the American way of doing things." Republican attorneys general from 26 states agree and have sued to have Obamacare struck down as unconstitutional. This narrow conception of "the American way" was not, however, shared by the founding fathers.

Shortly after ratification of the Constitution, the U.S. government required some citizens to purchase private goods and, yes, health insurance, when necessary to the nation's well-being.

The Second Congress enacted, and President George Washington signed, The Militia Acts of 1792, which required "every free able-bodied white male citizen of the respective States" to join their state militias and "provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein."

In 1798, President John Adams signed into law "An Act for the Relief of Sick and Disabled Seamen," which required privately employed seamen to pay a portion of their wages into a government fund "for the temporary relief and maintenance of sick or disabled seamen, in the hospitals or other proper institutions."

Likewise, the Supreme Court upheld a health care mandate more than 100 years ago.

In 1905, the court found in Jacobsen v. Massachusetts that a state did not impinge on an individual's constitutional rights by mandating vaccination from smallpox (and penalizing those who refused to comply). The Supreme Court explained "liberty, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others."

History also shows that the modern-day GOP's conflation of liberty and "states' rights" is not just false, but offensively so. Under the rubric of such "liberty," conservatives of different eras opposed federal child labor laws, minimum wages, consumer protection, anti-discrimination laws and the abolition of slavery.

The Constitution, however, was built on compromises between those seeking and opposing a strong, unifying federal government. While conservatives routinely rewrite history to credit only one side of that debate, more than 200 years of history, the Civil War, women's suffrage, the New Deal, Social Security, the Civil Rights Act of 1964, Medicare, Medicaid, the Americans with Disabilities Act and the Patriot Act (among others) belie their claims.

Until the individual mandate was adopted by the Obama administration, the GOP had no difficulty reconciling it with liberty.

One Republican bill (SB 1743, Nov. 20, 1993), co-sponsored by such progressive senators as Strom Thurmond and Jesse Helms, would have required employers to deduct mandated insurance premiums from wages for payment to "the employee's chosen insurer," while another required that "each individual citizen shall be covered under a qualified health plan or an equivalent health care program" (SB 1770, Nov. 23, 1993).

Newt Gringrich argued in 2006 that "individuals without coverage often do not receive quality medical attention. ... We also believe strongly that personal responsibility is vital. ... Individuals who can afford to purchase health insurance and simply choose not to place an unnecessary burden on a system that is on the verge of collapse; these free-riders undermine the entire health system by placing the onus of responsibility on taxpayers."

In short, health care reform poses no threat to liberty and may be essential to its preservation.

In the 1960s, Congress taxed everyone to establish Medicare because private insurers would not, and could not afford to, provide health insurance to the elderly. In 1974, President Nixon wrote to Congress:

One of the most cherished goals of our democracy is to assure every American an equal opportunity to lead a full and productive life. Without adequate health care, no one can make full use of his or her talents and opportunities. It is thus just as important that economic, racial and social barriers not stand in the way of good health care as it is to eliminate those barriers to a good education and a good job. ... For the average family, even normal care can be a financial burden while a catastrophic illness can mean catastrophic debt. Comprehensive health insurance is an idea whose time has come in America.

Since that time, progressively rising costs have deprived ever more Americans of meaningful access to health care and forced others into bankruptcy. To now pretend that our health care system will somehow correct itself or that avoidable disease and unnecessary deaths are preferable to mandated insurance is to confuse liberty with irresponsibility.


Gary Kaplan is a Pittsburgh health law attorney who teaches as an adjunct faculty member at Carnegie Mellon University and blogs at healthlawdx.com .


Advertisement
Advertisement
Advertisement

You have 2 remaining free articles this month

Try unlimited digital access

If you are an existing subscriber,
link your account for free access. Start here

You’ve reached the limit of free articles this month.

To continue unlimited reading

If you are an existing subscriber,
link your account for free access. Start here