May 26, 2018
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Health in the courts

Can the federal government force you to buy health insurance? That question gets to the heart of the new health care reform law, the Patient Protection and Affordable Care Act, commonly known as the Affordable Care Act or ACA.

If it can’t, the risk will spread less widely, the premiums will rise for the rest of us, and the health reform plan could die in its tracks.

A federal judge in Virginia got a lot of attention last month when he ruled unconstitutional Section 1501, the Minimum Essential Coverage Provision, often called the individual mandate, which is essential to put the plan into action in 2014.

Judge Henry E. Hudson of the U.S. District Court in Richmond, Va., held that the law’s requirement that most Americans obtain insurance went beyond the regulatory authority granted to Congress under the Commerce Clause. He wrote: “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”

He ruled that, to be constitutional, the law must not only affect interstate commerce but also involve activity. He italicized the word “activity.” The implication was that not buying insurance is inactivity, not activity.

Earlier, two other federal judges had upheld the law as constitutional. In October, Judge George. C. Steeh of the U.S. District Court in Detroit ruled that choosing not to obtain insurance qualified as an example of “activities that substantially affect interstate commerce.” He wrote that not obtaining health coverage is, in effect, an active decision to pay for medical care out-of-pocket.

“These decisions, viewed in the aggregate,” Judge Steeh wrote, “have clear and direct impacts on health care providers, taxpayers and the insured population, who ultimately pay for the care provided to those who go without insurance.”

On Nov. 30, Judge Norman K. Moon of the Virginia federal court in Lynchburg upheld the law’s constitutionality. He ruled that the requirement that most Americans obtain medical coverage falls within Congress’ authority to regulate interstate commerce.

“I hold that there is a national basis for Congress to conclude that individuals’ decisions about how and when to pay for health care are activities that, in the aggregate, affect the interstate health market,” he wrote.

“Far from ‘inactivity,’ by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out-of-pocket, rather than now, through the purchase of insurance.”

He noted that these decisions would affect the national market, “collectively shifting billions of dollars onto other market participants and driving up the prices of insurance policies.”

Two dozen or more additional cases are in the works. Many will go up to the appeals courts, and likely the Supreme Court ultimately will rule on the law’s constitutionality.

After decades of inaction on health reform and steadily rising costs, Congress was bold to enact a universal health insurance plan. The ongoing legal challenges show that this work is far from over but should not detract attention from the need to extend insurance coverage to more Americans.

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