Professor of Law, New York Law School
President, American Civil Liberties Union (ACLU), 1991-2008
At the conclusion of his argument in the Court's final session last Wednesday afternoon, U.S. Solicitor General Donald Verilli moved beyond the specific Medicaid expansion issue then on the Court's agenda, to argue more broadly that the Medicaid expansion, as well as the minimum coverage provision and other core aspects of the new law, will promote the equal "opportunity to enjoy the blessings of liberty." As Verilli urged, "it's important that we not lose sight of" the important ways in which the law advances liberty and equality, especially because its detractors have demonized the minimum coverage provision as violating both core constitutional concerns.
Three major national civil liberties and civil rights organizations - the American Civil Liberties Union, the NAACP Legal Defense & Educational Fund, and the Leadership Conference on Civil and Human Rights -- filed a friend of the court brief in the Supreme Court precisely to make the case that the minimum coverage provision has an overall positive impact on the intertwined constitutional guarantee of individual liberty and equal opportunity. For example, the ACLU summarized its "substantial interest in" this issue as being due to "its potential impact on the ability of millions of uninsured Americans to participate more fully in the economic, political, and social life of the Nation." This important perspective hasn't received as much attention as it deserves.
Numerous studies have documented that the uninsured are less likely to obtain adequate health care, thereby suffering many lost opportunities, which decreases both the quality and length of their lives. For example, children with untreated health problems are less likely to attend and to perform well in school. Being uninsured also correlates with other adverse educational outcomes, including failing to graduate from high school or to attend college.
The burdens of costly health care, and of being uninsured, are imposed disproportionately on members of our society who are relatively disempowered within the political system, including people of color, people with disabilities, low-income families, women, and senior citizens. Individuals in these groups inordinately experience unemployment, jobs that do not offer health insurance, and lower incomes that make insurance premiums unaffordable. The United Nations Committee that oversees compliance with the international Convention on the Elimination of all Forms of Racial Discrimination - to which the U.S. is a party -- recently noted its concern that in our country, "a large number of persons belonging to racial, ethnic, and national minorities still remain without health insurance and face numerous obstacles to access to adequate health care."
In sum, by lowering the cost of health insurance, the minimum coverage provision will make health care more affordable and accessible, thus enhancing liberty and equality for the millions of uninsured Americans. In contrast, this provision imposes only minimal burdens on individual liberty.
First, although its detractors refer to the minimum coverage provision as a "mandate," it does not in fact require anyone to purchase insurance. Rather, anyone may opt instead to pay a financial penalty, which is enforced through an offset of any tax refund that the government would otherwise have to pay. This arrangement certainly does not constitute direct government compulsion, and in many situations may well exert only limited influence on an individual's choice whether to buy insurance.
More fundamentally, this provision doesn't implicate any liberty interest that the Court has deemed constitutionally protected. For example, it doesn't force anyone to undergo any medical treatment or to receive any health services - which would infringe on fundamental freedoms of bodily integrity and medical decision-making. Instead, because the minimum coverage provision is an economic regulation, the asserted right to resist it is akin to the long-repudiated "liberty of contract" that the pre-1937 Supreme Court had read into the Constitution, substituting its own laissez-faire economic philosophy for our elected officials' policy choices.
Such judicial invalidation of economic regulations designed to promote equal access to health and welfare for the most vulnerable groups in our society, in the service of a judge-created "freedom of contract," has long been discredited as inappropriate judicial activism. If the Roberts Court resuscitated this approach, it would be promoting not individual liberty, but rather, judicial hegemony.