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The Individual Mandate is Necessary, and it is Constitutional

Posted by Mark Ryan, MD March 5, 2011 at 8:15 PM

Many of the reforms embodied in the Patient Protection and Accountable Care Act (PPACA) are widely popular, even among those who favor repealing the law (PDF; see the chart on the top of page 3).  The major reform of the PPACA that is unpopular is the individual mandate.  The requirement that everyone purchase health insurance or face a fine is consistently the least popular part of the law, despite the fact that many supporters of the bill feel that it is a necessary step to ensure the law’s health insurance reforms.

The individual mandate has also been the recent focus of the efforts to attack the PPACA in the courts.  The law’s opponents, including Virginia’s Attorney General, feel that the mandate to purchase health insurance is unconstitutional.  As of now, the courts have been divided on whether this is the case, and whether the mandate can be struck down in isolation or whether the PPACA as a whole would be invalidated if the individual mandate is found unconstitutional.  Recently, the New England Journal of Medicine published two articles I think are relevant.

The first article asks the question of whether Congress actually has the right to regulate economic inactivity.  The constitutional arguments both for and against the individual mandate focus on the Constitution’s Commerce Clause, in which Congress is given authority to regulate interstate commerce.  The argument made in support of the mandate is that everyone will have need for health care at some point, as a nation we have chosen to provide health care largely through private insurance, and the cost of this insurance is increased due to the care provided to uninsured patients.  Therefore: if everyone is paying more because many Americans lack health insurance coverage, then mandating health insurance is a segment of interstate commerce.  In essence, in this case, choosing not to purchase health insurance (inactivity) is in fact an active choice that ends up costing everyone.  Through their article, the authors believe that Judge Vinson’s recent ruling against the mandate is flawed and opposes Supreme Court precedent.

The second article analyzes the individual mandate in more detail, and considers alternatives if it were found unconstitutional when it finally reaches the Supreme Court.  The article concludes that although other options exist, it is not clear if they would be more politically viable than the mandate, and replacing the mandate with the listed alternatives would notably reduce the law’s benefits and would destabilize insurance pools that would be unable to turn away patients for pre-exisiting conditions and would be unable to limit lifetime benefits.

The PPACA includes many reforms that the American people support, and those reforms require that all Americans participate in the health insurance system.  The lack of participation, by choice or due to inability to pay, costs everyone.  The individual mandate, as unpopular as it is, is a key step to ensuring the law’s benefits and its inclusion in the PPACA is within Congress’s mandate to regulate commerce.

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