Yesterday in Florida, U.S. District Judge Roger Vinson adopted a radical interpretation of the Constitution and ruled that the personal responsibility provision of the Affordable Care Act (ACA), also known as the individual mandate, is unconstitutional. This is the requirement that, starting in 2014, people must obtain health insurance (with the help of subsidies for low and moderate income people). Based on his conclusion that the personal responsibility provision is unconstitutional, Judge Vinson ruled that the entire ACA must be struck down, from provisions requiring insurance companies to extend coverage regardless of preexisting conditions, to provisions requiring employers to give nursing mothers breaks from work to pump, to extensions of Medicaid coverage, to charging women more than men for the same health plan.
Judge Vinson’s ruling will not be the final word in this case, and given that the Justice Department has vowed to seek a stay of the decision pending appeal, it likely will not have a direct, immediate impact on implementation of health care reform. But unlike the symbolic vote to repeal health care reform that occurred two weeks ago in the House, the ideas behind Judge Vinson’s decision, if ultimately accepted by the Supreme Court, could end up being extremely dangerous for women and their families—causing harm beyond the significant harm of an actual repeal of the law itself.
By requiring everyone to have insurance if they can afford it, the personal responsibility provision makes it possible to require insurance companies to provide insurance to everyone, regardless of whether they are healthy or sick (known as guaranteed issue), while keeping insurance premiums affordable. States that have adopted guaranteed issue without a personal responsibility provision have seen a dramatic affect on their insurance markets: very high premiums, and few choices of providers. Indeed, the only state that has succeeded in adopting guaranteed issue is Massachusetts—and it adopted guaranteed issue together with a personal responsibility provision. The personal responsibility provision is therefore key to ensuring the success of many of the other insurance reforms that the ACA enacts. Judge Vinson relied on this interrelationship yesterday when he reasoned that, because he had held the personal responsibility provision unconstitutional, he must also strike down rules requiring insurance companies to stop treating women like a preexisting condition and abandon practices of denying women insurance coverage on the basis of past cesarean sections or being a victim of domestic violence, for example.
Equally disturbingly, in deciding yesterday that the personal responsibility provision was unconstitutional under the Commerce Clause, Judge Vinson potentially endangered a lot more than just health care. Ever since the New Deal, federal courts have been in agreement that the Commerce Clause of the Constitution, which empowers Congress to regulate interstate commerce, authorizes federal civil rights legislation, workplace regulation, safety net provisions, and environmental laws, because of the substantial impact that the subjects of these laws have on the national economy. One area that the federal government clearly has the right to regulate under these precedents is the $2.5 trillion annual health care services market, an interstate industry that currently makes up approximately 17.5% of our annual gross domestic product. The ACA attempts to reform this industry in a number of ways, but most of these reforms cannot function effectively without the personal responsibility provision. Therefore, as an essential part of the health care law, the personal responsibility provision should easily meet the Commerce Clause standard that courts have followed for many decades.
Nor, contrary to Judge Vinson’s assertions, is the personal responsibility provision constitutionally unique because it requires individuals to engage in an economic act that they might otherwise refuse to engage in. For many decades, federal courts, including the Supreme Court, have been ruling that legislation under the Commerce Clause that protects the rights of all Americans can sometimes appropriately require other Americans to do what they don’t want to do. For example, forty-seven years ago last month, a Georgia establishment by the name of the Heart of Atlanta Motel, which for years had been refusing to rent rooms to African-Americans, challenged the constitutionality of the recently-passed Civil Rights Act of 1964, arguing that it exceeded Congress’s power under the Commerce Clause. The Supreme Court unanimously found the law constitutional, writing that the federal government had the ability to require the hotel to engage in an economic transaction it did not wish to undertake—because the refusal to rent to African-Americans was a “moral and social wrong” that also affected the economy as a whole.
Ever since Heart of Atlanta, the courts have upheld the constitutionality of laws that have protected the rights of all Americans to be free of bias and discrimination, like that women suffer in the health care market—laws such as Title VII of the Civil Rights Act, the Americans with Disabilities with Act, the Equal Pay Act, and the Family and Medical Leave Act. Judge Vinson’s radical theory of the Constitution opens the door to challenges to these laws, to the extent they regulate “inactivity”—such as a failure, on the basis of sex, to offer a job or to give a pay raise.
Judge Vinson’s decision also sets out at great length his interpretation of the founders’ original understanding of the Commerce Clause, which he argues was limited to the narrow power to eliminate direct barriers states erected to the interstate trade and of goods: through this emphasis, he seems to invite courts, including the Supreme Court, to hold that the Commerce Clause so limits Congressional power today. Should this theory become the law of the land, many other laws of critical importance to women and families that have long been held permissible under the Commerce Clause are at risk, from minimum wage provisions to food and drug safety rules.
Certainly, Judge Vinson’s decision today is not the end of the fight over the constitutionality of the health care law. Yesterday’s case is only one of 20 different challenges that have been brought so far in various federal courts around the country. Most have been dismissed without reaching the merits, and two other cases have found the personal responsibility provision to be constitutional. Many, if not all, of these decisions will be appealed, and ultimately, the Supreme Court is expected to decide the issue. When it does, it should overturn Judge Vinson’s efforts to legislate from the bench and his rejection of longstanding constitutional principles and precedent. Respecting these precedents will not only protect the health care law, but also a half-century’s worth of civil rights and safety net advances.