Hostname: page-component-78c5997874-s2hrs Total loading time: 0 Render date: 2024-11-06T13:50:02.319Z Has data issue: false hasContentIssue false

The Individual Mandate: Implications for Public Health Law

Published online by Cambridge University Press:  01 January 2021

Extract

No provision of the Patient Protection and Affordable Care Act (PPACA) has proven to be more contentious than the so-called “individual mandate.” Starting in 2014, the mandate will impose a penalty on non-exempt individuals who lack health insurance. According to Congress, the mandate is essential to ensuring near universal coverage. Without it, PPACA’s insurance reforms will lead healthy individuals to delay purchasing health insurance until they require medical care, resulting in risk pools with a disproportionate share of high-risk people. The price of insurance will then climb, causing more and more not-so-sick people to forego health insurance. The resulting “death spiral” will make insurance unaffordable to many more Americans.

Type
Symposium
Copyright
Copyright © American Society of Law, Medicine and Ethics 2011

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Patient Protection and Affordable Care Act, 26 U.S.C.A. § 5000A (West 2010).Google Scholar
42 U.S.C.A. § 18091 (West 2010).Google Scholar
Hall, M., “The Factual Bases for Constitutional Challenges to Federal Health Insurance Reform,” Wake Forest University Legal Studies Paper, no. 1717781 (2010), at 10, available at <http://ssrn.com/abstract=1717781> (last visited June 3, 2011).Google Scholar
Appellee's Opening and Response Brief, Commonwealth v. Virginia ex rel Cuccinelli, Nos. 11–1057, 11–1058 (4th Cir. March 28, 2011), at 6264.Google Scholar
Rivkin, D. B. Jr. Casey, L. A. Balkin, J. M., “A Healthy Debate: The Constitutionality of an Individual Mandate,” University of Pennsylvania Law Review PENNumbra, 158 (2009): 93118, 101, available at <http://www.pennumbra.com/debates/pdfs/HealthyDebate.pdf> (last visited June 3, 2011).Google Scholar
Id., at 99101.Google Scholar
Richey, W., “Supreme Court Says No to Expedited Hearing on Health-Care Reform Law; Virginia's Attorney General Had Asked the Supreme Court to Bypass the Usual Appeals Process by Allowing His State's Challenge to the Obama Health-Care Reform Law to Proceed Directly to the High Court,” Christian Science Monitor, April 25, 2011 (noting that 26 states are in the Florida case and Virginia has its own case).Google Scholar
Cf., e.g., State of Florida ex rel Bondi v. United States Dep't of Health and Human Servs., No. 3:10-cv-91-RV/EMT, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011) (finding the mandate unconstitutional); Virginia ex rel Cuccinelli v. Sebelius, 728 F. Supp.2d 768 (E.D. Va. 2010) (same) with Thomas More Law Ctr. v. Obama, No. 10–2388, 2011 WL 2556039 (6th Cir. June 29, 2011) (upholding the mandate); Mead v. Holder, No. 10–950 (GK), 2011 WL 611139 (D.D.C. Feb. 22, 2011) (upholding the mandate); Liberty Univ. v. Geithner, 753 F. Supp.2d 611 (W.D. Va., 2011) (same).Google Scholar
Smith, P. J., “Federalism, Lochner and the Individual Mandate,” George Washington University Law School Public Law and Legal Theory Working Paper, no. 534 (2011), available at <http://ssrnabstract=1777208> (last visited June, 3, 2011).Google Scholar
H. R. Rep. No. 111–299, Pt 2, 111th Cong. 2d Sess. (2009).Google Scholar
Kaiser Family Foundation, Focus on Health: Summary of New Health Reform Law, April 15, 2011, available at <http://www.kff.org/healthreform/upload/8061.pdf> (last visited June 3, 2011).+(last+visited+June+3,+2011).>Google Scholar
26 U.S.C.A. § 5000A (c)(3) (West 2010).Google Scholar
Id., at § 5000A (c)(1)(B).Google Scholar
Id., at § 5000A (c)(3–4).Google Scholar
Id., at § 5000A (d).Google Scholar
Id., at § 5000A (g)(2).Google Scholar
42 U.S.C.A. §§ 300gg; 300gg-1 (West 2010).Google Scholar
Id., at § 18091 (a)(2)(1).Google Scholar
Chandra, A. Gruber, J. McKnight, R., “The Importance of the Individual Mandate-Evidence from Massachusetts,” New England Journal of Medicine 364, no. 4 (2011): 293295.CrossRefGoogle Scholar
42 U.S.C.A. § 18091(a)(2)(1) (West 2010).Google Scholar
Id., at § 18091(a)(1).Google Scholar
Romney, M., “Health Care for Everyone? We Found a Way,” Wall Street Journal, April 11, 2006, at A16.Google Scholar
Virginia ex rel Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 601–615 (E.D. VA., 2010).Google Scholar
See Richey, supra note 8.Google Scholar
Herzenhorn, D. M. Pear, R., “As Vowed, House Votes to Repeal Health Care Law,” New York Times, January 20, 2011, at 1.Google Scholar
Galewitz, P., “Americans Remain Divided, Confused about Health Law as Anniversary Nears,” Kaiser Health News, March 18, 2011, available at <http://www.kaiserhealthnews.org/Stories/2011/March/18/healthreform-poll-kff.aspx?utm_source=khn&utm_medium=internal&utm_campaign=keyword> (last visited June 3, 2011).+(last+visited+June+3,+2011).>Google Scholar
Oberlander, J., “Under Siege - The Individual Mandate for Health Insurance and Its Alternatives,” New England Journal of Medicine 364, no. 12 (2011): 10851087, at 1086.CrossRefGoogle Scholar
E.g., Mead v. Holder, No. 10 - 950 (GK), 2011 WL 61139 (D.D.C. Feb. 22, 2011); Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882 (E. D. Mich. 2010) aff'd No. 10–2388 WL 2556039 (6th Cir. June 29, 2011); U.S. Citizens Ass'n v. Sebelius, 754 F. Supp.2d 903 (N.D. Ohio, 2010).Google Scholar
For a summation of the arguments, see Virginia ex rel Cuccinelli v. Sebelius, 702 F. Supp.2d 598, 608–615 (E.D. Va. 210).Google Scholar
Id; Brief for the Appellants, State of Florida v. United States Dep't Health and Human Services, Nos. 11–11067 (11th Cir., April 1, 2011), at 2427.Google Scholar
Id., at 32–37, 5055.Google Scholar
The Supreme Court has refused expedited review of the issue. See Virginia ex rel Cuccinelli v. Sebelius, 728 F. Supp. 768 (E.D. Va., 2010), cert denied 563 U.S. __, No. 10–1014 (April 25, 2011).Google Scholar
Florida ex rel Bondi v. United States Dep't of Health and Human Servs, No. 3:10-cv-RV/EMT, 2011 WL 723117 * 2 (N.D. Fla., March 3, 2011).Google Scholar
Oxford English Dictionary Online, s.v. “Mandate.”Google Scholar
See Smith, , supra note 10; Brennan, P. M., “The Individual Mandate, Sovereignty, and the Ends of Good Government: A Reply to Professor Randy Barnett,” Villanova Public Law and Legal Theory Working Paper Series, no. 1769921 (February 2011), available at <http://ssrn.com/abstract=1769921> (last visited June 3, 2011).Google Scholar
Barnett, R., “Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional,” New York University Journal of Law and Liberty 5, no. 3 (2010): 581637, at 607.Google Scholar
Wechsler, H., “Toward Neutral Principles,” Harvard Law Review 73, no. 1 (1959): 135.CrossRefGoogle Scholar
E.g., Brief of Law Professors Barry Friedman, Matthew Adler et al. as Amici Curiae in Support of Defendants-Appellants, Commonwealth of Virginia ex rel Cuccinelli v. Sebelius, Nos. 11–11057 § 11–11058 (4th Cir., March 7, 2011).Google Scholar
Cf. Rivkin and Casey, supra note 8 (critiquing PPACA's mandate as regulating people merely on the basis of their “existence”).Google Scholar
Mahmoud-Davis, S., “Note - Balancing Public Health and Individual Choice: A Proposal for a Federal Emergency Vaccination Law,” Health Matrix 20, no. 1 (2010): 219257.Google Scholar
Opel, D. J. Marcuse, E. K., “Historical, Legal and Social Aspects of School Immunization Mandates,” Current Problems in Pediatric and Adolescent Health Care 40, no. 3 (2010): 4146.Google Scholar
I.R.C. §§ 105(b); 404 (West 2010).CrossRefGoogle Scholar
Gostin, L. O., “The National Individual Health Insurance Mandate,” Hastings Center Report 40, no. 5 (Sept./Oct. 2010): 89.CrossRefGoogle Scholar
For a fuller definition of the population perspective, see Parmet, W. E., Populations, Public Health and the Law (Washington, D.C.: Georgetown University Press, 2009): At 1422.Google Scholar
Id., at 5658.Google Scholar
Parmet, W. E., “Liberalism, Communitarianism, and Public Health: Comments on Lawrence O. Gostin's Lecture,” Florida Law Review 55, no. 5 (2003): 12211240 (discussing the action/inaction distinction in the context of vaccination and quarantine laws).Google Scholar
197 U.S. 11, 26 (1905).CrossRefGoogle Scholar
Id., at 2632.Google Scholar
Id., at 27.Google Scholar
Woodhouse, D. Smith, R., “Global Public Goods and Health: Concepts and Issues,” in Smith, R. et al., eds., Global Public Goods for Health: Health Economics and Public Health Perspectives (New York: New York University Press, 2003): 329, at 10–11. See also Leonard, E. W., “The Public's Right to Health: When Patient Rights Threaten the Commons,” Washington University Law Review 86, no. 6> (2009): 1335–1395, at 1345–48 (explaining the collective action problems to which public health law responds).Google Scholar
Fine, P. Eames, K. Heyman, D. L., “‘Herd Immunity’: A Rough Guide,” Clinical Infectious Disease 52, no. 7 (2011): 911916.CrossRefGoogle Scholar
Thaler, R. H. Sunstein, C. R., Nudge: Improving Decisions about Health, Wealth, and Happiness (New Haven: Yale University Press, 2008): At 3.Google Scholar
Cf. Epstein, R. A., “In Defense of the ‘Old’ Public Health: The Legal Framework for the Regulation of Public Health,” Brooklyn Law Review 69, no. 4 (2004): 14211470 (arguing that the scope of public health law should be limited to controlling infectious diseases and abating nuisances).Google Scholar
Story, M. et al., “Creating Healthy Food and Eating Environments: Policy and Environmental Approaches,” Annual Review of Public Health 29, no. 1 (2008): 253272.CrossRefGoogle Scholar
Gupta, G. R. et al., “HIV Prevention 4: Structural Approaches to HIV Prevention,” The Lancet 372, no. 9640 (2008): 764775.CrossRefGoogle Scholar
See Epstein, , supra note 54.Google Scholar
Mill, J. S., On Liberty, Shields, C. V., ed. (New York: Macmillan Publishing Company, 1956): At 13.Google Scholar
For a review of the literature, see Ogolla, C. P. Shaw, F., “Is the Repeal of Mandatory Motorcycle Helmet Legislation a Contributing Factor to Traumatic Brain Injury as a Public Health Problem? Recommendations for the Future,” Michigan State Journal of Medicine and Law 14, no. 1 (2010): 163213.Google Scholar
Picou v. Gillum, 874 F. 2d 1519 (11th Cir. 1989).Google Scholar
Pope, T. M., “Is Public Health Paternalism Really Never Justified? A Response to Joel Feinberg,” Oklahoma City University Law Review 30, no. 1 (2005): 121207, at 169–170.Google Scholar
See Ogolla and Shaw, supra note 59, at 209, quoting J. Donne, Devotions Upon Emergent Occasions (1624): at 1089.Google Scholar
Id. For example, the network of organizations known as ABATE (which originally stood for “A Brotherhood Against Totalitarian Enactments”) lobbies against helmet laws and seeks to “unite” motorcycle riders. For information about ABATE and links to the websites of the different state organizations, see National Abate Links, available at <http://www.abatemiregion5.com/INDEX_files/Page0003.htm> (last visited June 23, 2011).+(last+visited+June+23,+2011).>Google Scholar
Studies show that motorcycle helmet laws are remarkably effective in achieving compliance. Neiman, M., “Motorcycle Helmet Laws: The Facts, What Can Be Done to Jump-Start Use and the Ways to Cap Damages,” Journal Health Care Law and Policy 11, no. 2 (2008): 215248.Google Scholar
Institute of Medicine, America's Uninsured Crisis: Consequences for Health and Health Care (Washington, D.C.: National Academics Press, 2009): At 5.Google Scholar
Id., at 7.Google Scholar
Id., at 99102.Google Scholar
Brief for Appellant Kathleen Sebelius, Commonwealth of Virginia, ex rel Cuccinelli v. Sebelius, Nos. 11–1057 & 11–1058 (4th Cir. February 28, 2011), at 11, quoting Congressional Budget Office, Key Issues in Analyzing Major Health Insurance Proposals (2008): At 13, available at <http://www.cbo.gov/ftpdocs/99xx/doc9924/12–18-KeyIssues.pdf> (last visited June 22, 2011). Scholars have questioned the extent to which the uninsured are free riders who add costs to the system. See Kahn, D. A. Kahn, J. H., “Free Rider - A Justification for Mandatory Medical Insurance under Health Reform?” University of Michigan Public Law Working Paper no. 235 (2011), available at <http://ssrn.com/abstract=1784495> (last visited June 3, 2011) Hoffman, A. K., “Oil and Water: Mixing Individual Mandates, Fragmented Markets, and Health Reform,” American Journal of Law and Medicine 36, no. 1 (2010): 777.Google Scholar
42 U.S.C.A. § 1809(a)(2)(F) (West 2010).Google Scholar
See Brief for Appellant Kathleen Sebelius, supra note 68, at 34.Google Scholar
42 U.S.C.A. § 1395dd (West 2010); Furrow, B. R. et al., Health Law (St. Paul, , West Group: 2000): At 524525.Google Scholar
See Institute of Medicine, supra note 65, at 2931.Google Scholar
In an amicus brief filed before the United States Court of Appeals for the Fourth Circuit, the Young Invincibles, an organization purporting to represent young people, argued that they are disproportionately uninsured not because of choice, but “because of circumstances.” Amicus Brief of Young Invincibles in Support of Appellant, Commonwealth of Virginia ex rel Cuccinelli v. Sebelius, Nos. 11-1-57 & 11–1058 (4th Cir., March 7, 2011), at 9.Google Scholar
Gostin, L. O. Burris, S. Lazzarini, Z., “The Law and the Public's Health: A Study of Infectious Disease Law in the United States,” Columbia Law Review 99, no. 1 (1999): 59128. 75. See Kaiser Family Foundation, supra note 12.CrossRefGoogle Scholar
Lantos, J. D., “Vaccine Mandates in Historical Context,” in Lantos, J. D. et al., “Controversies in Vaccine Mandates,” Current Problems in Pediatric and Adolescent Health Care 40, no. 3 (March 2010): 5158, at 51. On its website, the CDC posts “7 true stories” of what can happen to unvaccinated children. These stories are clearly designed to suggest to parents that their own children will be at great risk if they are not vaccinated. Centers for Disease Control and Prevention, “Vaccines and Preventable Diseases: Vaccines: Unprotected Stories,” available at <http://www.cdc.gov/vaccines/vpd-vac/unprotected-stories.htm> (last visited June 23, 2011).Google Scholar
See Ogolla and Shaw, supra note 59, at 189.Google Scholar
See Neiman, , supra note 64, at 215248; citing General Accounting Office, “Highway Safety: Motorcycle Helmet Laws Save Lives and Reduce Costs to Society” (1991), at 3, available at <http://archive.gao.gov/219+9/14486.pdf>..>Google Scholar
Id., at 221.Google Scholar
See Ogolla and Shaw, supra note 59.Google Scholar
People v. Fries, 250 N.E.2d 149, 150 (Ill. 1969) overruled by People v. Kohrig, 489 N.E. 2d 1158 (Ill. 1986).Google Scholar
Picou v. Gillum, 874 F.2d 1519, 1520 n.2 (11th Cir. 1989) (collecting cases).Google Scholar
See Ogolla and Shaw, supra note 59, at 190.Google Scholar
Id., at 190.Google Scholar
Task Force on Community Preventive Services, “Recommendations Regarding Interventions to Improve Vaccination Coverage in Children, Adolescents, and Adults,” American Journal Preventive Medicine, 18, no. 1S (2000): 9296.Google Scholar
Parmet, W. E., “Pandemic Vaccines - The Legal Landscape,” New England Journal of Medicine 362, no. 21 (2010): 19491952, at 1951–1952 (describing requirements imposed by some hospitals).CrossRefGoogle Scholar
Parmet, W. E., “Pandemics, Populism and the Role of Law in the H1N1 Vaccine Campaign,” Saint Louis University Journal of Health Law and Policy 4, no. 1 (2011): 113153.Google Scholar
See Lantos, , supra note 76, at 51.Google Scholar
Colgrove, J., State of Immunity: The Politics of Vaccination in Twentieth-Century America (Berkeley: University of California Press, 2006): At 2638.Google Scholar
Zucht v. King, 260 U.S. 174 (1922).Google Scholar
E.g., National Vaccine Information Center, “State Law & Vaccine Requirements,” available at <http:www.nvic.org/Vaccine-Laws/state-vaccine-requirements.aspx> (last visited June 3, 2011); Kata, A., “A Postmodern Pandora's Box: Anti-Vaccination Misinformation on the Internet,” Vaccine 28, no. 7 (2010): 17091715.+(last+visited+June+3,+2011);+Kata,+A.,+“A+Postmodern+Pandora's+Box:+Anti-Vaccination+Misinformation+on+the+Internet,”+Vaccine+28,+no.+7+(2010):+1709–1715.>Google Scholar
Scripps Howard News Service, “Vaccinations,” Ohio University Poll, no. 7 (September 2007).Google Scholar
See Colgrove, , supra note 91, at 219.Google Scholar
See Parmet, , supra note 89.Google Scholar
See Parmet, , supra note 88.Google Scholar
Keeton, V. F. Chen, A. K., “Immunization Updates and Challenges,” Current Opinions in Pediatrics 22, no. 2 (2010): 234240.CrossRefGoogle Scholar
Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, “Measles - United States, January 1-April 25, 2008,” Morbidity and Mortality Weekly Report, 57, no. 18 (2008): 14, available at <http://www.cdc.gov/mmwr/preview/mmwrhtmlmm57e501a1.htm> (last visited June 23, 2011).+(last+visited+June+23,+2011).>Google Scholar
See Neiman, , supra note 64, at 231.Google Scholar
See Keeton, Chen, , supra note 98.Google Scholar
Mead v. Holder, No. 10 - 950 (GK), 2011 WL 611139 * 3 (U.S.D.C. Feb. 22, 2011).Google Scholar
“Massachusetts Changes Its Seat-Belt Sign, But the Message Stays the Same,” New York Times, December 6, 1986, at 1–68. Houston, D. J. Richardson, L. E. Jr., “Getting Americans to Buckle Up: The Efficacy of State Seat Belt Laws,” Accident Analysis and Prevention 37, no. 6 (2005): 11141120 Cohen, A. Einau, L., “The Effects of Mandatory Seat Belt Laws on Driving Behavior and Traffic Fatalities,” Review of Economics and Statistics 85, no. 4 (2003): 828–843.CrossRefGoogle Scholar
The PPACA litigation is somewhat unique because the plaintiffs are challenging the mandate several years before it goes into effect. In addition, the states are trying to bring claims regarding a mandate that affects individuals. As a result, the Justice Department has raised a number of jurisdictional defenses in each of the cases. The lower courts, however, have generally rejected those defenses, at least as far as the state plaintiffs are concerned. See State of Florida ex rel Bondi v. United States Dep't of Health and Human Servs., No. 3:10-cv-91-RV/EMT, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011); Virginia ex rel Cuccinelli v. Sebelius, 728 F. Supp.2d 768 (E.D. Va. 2010). A few of the cases brought by individual plaintiffs, however, have been dismissed on the basis of standing. See New Jersey Physicians, Inc. v. Obama, 757 F. Supp. 2d 502 (D.N.J., 2010) (dismissing complaint for lack of standing); Liberty Univ. v. Geithner, 753 F. Supp.2d 611 (W.D. Va. 2010) (dismissing claims of individual plaintiffs for lack of standing, but finding that Liberty College has standing); Shreeve v. Obama, No. 1:10-CV-71, 2010 WL 4628177 (D. Tenn. Nov. 4, 2010) (dismissing complaint and finding among other things that plaintiffs lack standing to challenge PPACA as a whole). But see Thomas More Law Ctr. v. Obama, No. 10–2388, 2011 WL 2556039 *6 (6th Cir. June 29, 2011) (finding that plaintiffs have standing); Goudy-Bachman v. U.S. Dep't of Treasury, 764 F. Supp. 2d 684 (M.D. Pa., 2011) (finding that plaintiffs have standing and that their claims are ripe); Liberty Univ. v. Geithner, 753 F. Supp.2d 611 (W.D. Va. 2010) (dismissing claims of individual plaintiffs for lack of standing, but finding that Liberty College has standing).Google Scholar
197 U.S. 11, 38–39 (1905).Google Scholar
State of Florida ex rel Bondi v. United States Dep't of Health and Human Servs., No. 3:10-cv-91-RV/EMT, 2011 WL 285683 (N.D. Fla., Jan. 31, 2011); Virginia ex rel Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010>).).' href=https://scholar.google.com/scholar?q=State+of+Florida+ex+rel+Bondi+v.+United+States+Dep't+of+Health+and+Human+Servs.,+No.+3:10-cv-91-RV/EMT,+2011+WL+285683+(N.D.+Fla.,+Jan.+31,+2011);+Virginia+ex+rel+Cuccinelli+v.+Sebelius,+728+F.+Supp.+2d+768+(E.D.+Va.+2010>).>Google Scholar
E.g., 728 F. Supp. 2d at 784 (citing Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922).Google Scholar
State of Florida ex rel Bondi, No. 3:10-cv-RV/EMT, 2011 WL 285683 at * 34; Hall v. Sebelius, No. 08–175 (RMC), 2011 WL 891818 (D.D.C. March 16, 2011).Google Scholar
See, e.g., Hammer v. Dagenhart (The Child Labor Case), 247 U.S. 251 (1918) (striking down federal child labor law because it infringed on power of the states); Lochner v. New York, 198 U.S. 45 (1905) (striking down state labor law as exceeding scope of the police power).Google Scholar
Law, S., “Human Papillomavirus Vaccination, Private Choice, and Public Health,” University of California at Davis Law Review 41, no. 5 (2008): 17311772, at 1744.Google Scholar
42 U.S.C.A. § 1396s (West 2010).Google Scholar
I.R.C. § 36B (West 2010) (tax credit for individuals); I.R.C. § 45R (West 2010) (tax credit for small employers); 42 U.S.C.A. § 18071 (reduced cost sharing for individuals with income between 100 and 400 percent of the federal poverty level).Google Scholar