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States Defend Citizen’s Right Not to Purchase Health Insurance (But Not Oregon)

Now that ObamaCare is the law of the land, it’s not surprising that attention is turning to the supreme law of the land, the U.S. Constitution, in an attempt to derail it in the courts. So far, it appears that seventeen states will join forces in a single suit against the federal government. Virginia is filing its own suit, based on the newly signed Virginia Health Care Freedom Act that protects its citizens from being forced to purchase health insurance or to participate in any health care system against their will.

The lawsuit’s main legal claim is that Congress does not have authority to require citizens to purchase a service they would not have purchased voluntarily, namely, health insurance.

Leaving aside the fact that the new mandate is not so much for insurance in the true protection-against-catastrophic-events sense (as it primarily requires prepayment of medical care), the mandate is a critical piece of this legislation’s 2,700-page puzzle. Without the mandate, many people might abuse the law’s prohibition against insurance companies denying coverage based on pre-existing conditions. By waiting until they have a serious health event before buying coverage, people could deny the system needed revenue and thus become serious drains on the system, as they would require others to pick up their high medical costs.

Legal scholars agree that whether or not the insurance mandate is constitutional may depend on whether such a requirement falls within the Commerce Clause of the Constitution (Article I, Section 8, Clause 3). The Commerce Clause gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This power was quite limited until a series of post-New Deal Supreme Court cases turned prior understanding of Commerce Clause power on its head.

A key case was Wickard v. Filburn (1942) in which the Court found that any activity that exerts a substantial economic effect on interstate commerce could be regulated. In this case, farmer Roscoe Filburn grew wheat to feed his chickens. The U.S. government had imposed limits on wheat production in order to drive up wheat prices during the Great Depression. Filburn was growing more wheat than allowed by law.

The Supreme Court decided that because Filburn was growing wheat that he otherwise might buy in interstate commerce, he was therefore affecting interstate commerce. Thus, he could be regulated by federal law. Even though the amount of wheat Filburn wasn’t buying was small, the Court concluded that if everyone did the same thing the effect would be large. He was ordered to destroy his crops and pay a fine.

Extrapolating from the wheat decision, proponents of the health coverage mandate will claim that if enough individuals don’t purchase insurance coverage, they will have a noticeable effect on interstate commerce. Of course, all states basically prohibit their citizens from purchasing insurance across state lines unless the company is licensed to sell in their state; but never mind. Mandate proponents simply will argue that not buying a specific service in one’s own state is enough of an infraction to trigger federal oversight and control. While this seems like as big a stretch, or bigger, than the wheat decision, it is a stretch that ObamaCare supporters feel confident the courts will approve.

Another key Constitutional question is whether the federal government can trump decisions made by the states, such as the Virginia Health Care Freedom Act. At least 37 other states are now considering similar laws. This November, for example, Arizonans will vote on a constitutional amendment that preserves the freedom of individuals to decline to participate in any health care system.

Mandate supporters doubt that such state laws will work, because the Constitution’s federal Supremacy Clause (Article VI, Clause 2) makes clear that when federal and state law conflict, federal law takes precedence. But it doesn’t always.

Oregon was in the forefront of what could be a very relevant exception. In Gonzales v. Oregon (2006), the U.S. Supreme Court upheld Oregon’s “right-to-die” law, approved twice by Oregon voters. The U.S. Attorney General argued that federal law pre-empted the state law. The Supreme Court disagreed and found that states generally have wide discretion in regulating health and safety, including medical standards. Finding that the Bush administration’s reading of the federal statute would mark “a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality,” the Court ruled that Oregon could protect the rights of its citizens, at least in this specific instance.

Today, the state of Oregon is on the other side of the states’ rights issue, ready to enter the federal lawsuits on the side of those who want to deny Oregon citizens the right not to purchase health insurance. But those Oregonians who question a virtual federal takeover of our nation’s health care system can take heart in the fact that other states now play the role Oregon played in 2006-that of defender of state and individual rights against federal power.

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