Individual Health Insurance Mandate Would Violate Constitutional Liberties

Among the elements of the health bill currently being considered by Congress is a requirement that every adult would have to obtain health insurance coverage or face large fines. Legal scholars have been debating whether the U.S. Supreme Court would find such a requirement to be constitutional.

Why are so many Americans uninsured in the first place? It is true that, for many of us, insurance is just unaffordable. But many more voluntarily choose to forgo health insurance. Some follow religions that prohibit the use of modern medicine. Others prefer nontraditional treatments. Still others are confident enough in their propensity for health that they are willing to risk the costs of illness or injury in order to direct their money to concerns they believe to be more pressing. And there are some who, recognizing that most people pay insurance companies far more than they are ever likely to need for their own treatment costs, prefer to self-insure by creating their own health fund.

So, does the U.S. Constitution protect these citizens who might object to the health insurance mandate? Possibly. The Supreme Court has previously recognized that the Constitution protects citizens’ rights to associate with others of their choosing, to enter into contracts, to make their own decisions regarding whether or not to receive health care, and, of course, their right to privacy. The court has also recognized that a constitutional right to do something implies a complementary right not to be forced to do that same thing — the freedom of speech, for example, means that the government may not compel you to speak.

For America’s voluntarily uninsured, a congressional directive to purchase health insurance would mean not only sacrificing a huge amount of money, but also potentially their convictions, personal autonomy, and privacy — all for services they do not want, and in some cases may be prohibited from using. This sort of mandate would clearly violate some, if not all, of the constitutional rights listed above, although the Supreme Court might decide that congressional interest in passing the mandate justifies the infringement of those rights.

Certain lawmakers are trying to give Missourians an additional layer of protection. Recognizing that state constitutions are permitted to afford liberties beyond those secured under the U.S. Constitution, half of the state Senate has already agreed to cosponsor Senate Joint Resolution 25, which would amend the Missouri Constitution to specify that citizens have a right to decide for themselves whether they will participate in any health care system.

Under this amendment, government officials would also be denied the authority to prevent citizens from offering or accepting direct payment for health care services, and they would not be permitted to substantially limit the purchase or sale of health insurance in private health care systems. While it is not certain that the Supreme Court would allow state constitutional protections to override a federal statute, this effort could be a useful step toward securing those individual freedoms that ought to be the American birthright.

Dave Roland is a constitutional law expert and a policy analyst with the Show-Me Institute, a Missouri-based think tank.