What’s Liberty Got to do With It?

By Amanda Frost, Professor of Law, American University, Washington College of Law

Opponents of the health care reform law argue that it takes away their liberty to make choices about health care.  In their brief to the Supreme Court, the twenty-six states challenging the constitutionality of the so-called individual mandate – the provision requiring those who can afford it to purchase health insurance – claim that it undermines “the very liberty that the Constitution was designed to protect.”  But in fact the legal questions before the Court have almost nothing to do with liberty when it comes to health care or health insurance, as the challengers’ own concessions make clear. 

The states challenging the law do not deny that almost everyone needs health care at some point in their lives, and they even agree that the government can make people pay for health care through health insurance.  They take issue only as to when the government can compel that purchase, arguing that no one can be forced to buy insurance before they need to pay for health care.  The challengers also admit that the federal government could force everyone to pay higher taxes to cover the health care costs of those without insurance.  Nor do they deny that the federal government can require doctors to provide emergency care to those without health insurance, and then to allow those doctors to pass along the costs of that care to the rest of us through higher insurance premiums and taxes – indeed, that is how our system currently operates.  Finally, the challengers acknowledge that the states themselves could pass laws mandating that all their citizens purchase health insurance, as Massachusetts has done. 

All that is really at stake, then, is whether the federal government has the constitutional authority to require individuals to purchase health insurance before they need to pay for their health care.   That “freedom” seems far from the heady liberty interest that opponents of the law claim this case is all about.

Moreover, if the Supreme Court strikes down the individual mandate, that decision will significantly infringe on the liberty interests of all those who do take the responsible step of purchasing health insurance for themselves and their families.  Everyone with health insurance will have to pay higher premiums than they would have if the mandate had been upheld, since their payments subsidize the care of those without insurance.  That is the situation today, with families paying on average $1000 more per year for health insurance to cover the costs of the uninsured. 

Furthermore, those without insurance who unexpectedly need health care will no longer have many of the treatment options that would have been available to them had they been required to buy insurance before their illness or injury.  Most likely, the uninsured will continue to receive emergency care, as the law currently requires – though Congress could repeal that law if it decided it wanted them to bear the full costs of their choice to remain uncovered.  But many of the uninsured will not have the full range of medical care that they would have received had the mandate remained in place, since they will have neither health insurance nor the money to pay for that care out of their own pockets. 

Even those justices on the Supreme Court who appeared sympathetic to the challengers’ arguments did not buy that this is a case about individual liberty.  In fact, none of the justices once uttered the words “liberty” and “freedom” in the oral argument addressing the individual mandate because they understood that this case was about limiting how Congress can go about regulating health care and health insurance, and not whether an individual has a liberty interest in forgoing health insurance altogether.  So whatever the Supreme Court decides about the constitutionality of the health care reform legislation, do not be fooled into thinking that the challengers to the law are defending individual liberty against an overbearing government.  The liberty interests at stake are truly weighty, but they are almost all on the government’s side.